Raven K. Cox, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0120091248 (E.E.O.C. Aug. 3, 2009)

0120091248

08-03-2009

Raven K. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Raven K. Cox,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091248

Agency No. 4J460015108

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 17, 2009, 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 a complaint dated December 16, 2008, complainant alleged that she was

subjected to discrimination on the bases of race (African American), sex

(female), and color (Black). The agency characterized the complaint as

concerning a letter of decision complainant received on September 8, 2008,

removing her from agency employment. The agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(4) for having raised

this matter in an earlier appeal to the Merit Systems Protection Board

(MSPB). The instant appeal followed.

In complainant's appeal, she asserts:

I did not file my EEO based on the removal I received. I filed on the

harassment and biased remarks made to me by the Postmaster and POOM.

I continually tried to explain this to the [EEO] counselor, but she kept

telling me that she didn't think I had a case. I did not bring up the

issue of discrimination during my MSPB appeals because I felt the issues

were not related.

A fair reading of the formal complaint and related EEO counseling

documents in this matter reveals that complainant raised both the removal

and a harassment/hostile work environment claim during the EEO process.

To the extent that she raised her removal, the agency's dismissal is

correct as the record supports the conclusion that she raised this same

matter previously before the MSPB.

With regard to her harassment claim, complainant specifically alleged:

(1) the Postmaster made a number of "harassing" phone calls to her

home (which she did not describe); (2) that during meetings about her

termination, he said that complainant "liked to shoot [her] mouth off,"

cautioned her against arguing or debating, used Barry Bonds as an example

of someone who was going to jail for lying, and frequently interrupted

her and her representative; and (3) at some unidentified time said he was

having pigs feet and ribs at his installation. Accepting complainant's

clarification as cited in her appeal, the Commission finds that this

claim should also be dismissed, pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim because complainant failed to allege facts

that would show she suffered harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994). The events described, even if proven to be true,

would not indicate that complainant has been subjected to harassment

that was sufficiently severe or pervasive to alter the conditions of her

employment. See Cobb v. Department of the Treasury, Request No. 05970077

(March 13, 1997).

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

August 3, 2009

__________________

Date

Date

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0120091248

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091248