01a54874
11-10-2005
Miryo Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Miyo Lee v. United States Postal Service
01A54874
11-10-05
.
Miryo Lee,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A54874
Agency No.1F-901-0066-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to harassment
and discriminated against on the bases of race (Asian), Color (Yellow)
and her sex when, on January 12, 2005, she was singled out by the Senior
Manager, Distribution Operations (MDO), who gave instructions to deny
her her right to see the union steward.<2>
The agency dismissed complainant's claim for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency found
that complainant was not aggrieved with respect to a term, condition or
privilege of employment. Further, the agency found that complainant
failed to state a claim of harassment since the alleged incident did
not rise to the level of a discriminatory hostile work environment.
On appeal, complainant offers statements of additional incidents of
harassment that were not included in the record. The agency requests that
we affirm the FAD. As a general rule, no new evidence will be considered
on appeal unless there is an affirmative showing that the evidence
was not reasonably available prior to or during the investigation.
MD-110 at 9-15; 29 C.F.R. � 1614.404(b). Therefore, since complainant
has not demonstrated that this evidence was not reasonably available, the
Commission declines to consider the additional evidence that complainant
submitted on appeal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee who believes that she has been discriminated against by that
agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission has
long defined an �aggrieved employee� as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). With regard to complainant's claims of
race, color and sex discrimination, the Commission finds that complainant
failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) since
complainant has failed to identify how not being allowed to meet with
her union steward affected a term, condition or privilege of employment.
Additionally, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct
and personal deprivation sufficient to render an individual aggrieved.
Backo v. United States Postal Serv., EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Serv., EEOC Request No.05940695
(February 9, 1995). Therefore, the Commission affirms the agency's
dismissal of complainant's disparate treatment claims.
Similarly, in determining whether a harassment complaint states a claim,
the Commission has repeatedly examined whether a complainant's harassment
claims, when considered together and assumed to be true, were sufficient
to state a hostile work environment claim. See Estate of Routson
v. National Aeronautics and Space Admin., EEOC Request No. 05970388
(February 26, 1999). In any case involving a claim of harassment,
the incidents must be judged by looking at all of the circumstances
including the frequency of the conduct; its severity, whether it is
physically threatening or humiliating, or a mere offensive uttering; and
whether it unreasonably interferes with an employee's work performance.
Faragher v. Boca Raton, 524 U.S. 775, 787-788.
The Commission finds that complainant failed to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1) since the incident is not sufficient
to state a claim of harassment. Complainant has failed to establish
that the incident was sufficiently severe or pervasive to render her
work environment hostile. Furthermore, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February 16,
1995). Therefore, the Commission concludes that the agency appropriately
dismissed her claims. Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_______11-10-05___________
Date
1 We note that the record contains documents listing complainant's first
name as both �Miyo� and �Miryo.� Complainant has another unrelated case
pending on appeal before the EEOC, EEOC Appeal No. 01A51982, where the
documents contain the name �Miryo.� To avoid any confusion, we have
decided to use �Miryo� as complainant's first name.
2 There is evidence in the record that complainant also alleged a claim
that a letter of warning should be removed from her file. The agency,
in its FAD, found that since complainant failed to include this claim
in her formal complaint, and instead listed it as a remedy, complainant
waived her right to raise this claim. On appeal, complainant does not
contest the agency's decision, therefore, we decline to address the issue.
EEOC Management Directive for 29 C.F.R. Part 1614 (as revised November 9,
1999) (EEO MD-110) 9-10.