0120112486
02-23-2012
Sarah E. Scott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Sarah E. Scott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120112486
Agency No. 4K-290-0010-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
February 17, 2011 decision, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Carrier at the Agency’s Oakbrook Station in Summerville, South
Carolina. On January 25, 2011, Complainant filed a formal complaint
alleging that the Agency subjected her to discriminatory harassment
on the bases of sex (female) and in reprisal for prior protected EEO
activity when:
1. On September 20, 2010, an email, regarding Budget Telecon Information
and Directives, was sent to the Agency’s Charleston and Summerville
staff;
2. A member of Agency management rode along with Complainant while she
was on her route on September 21, 2010; September 22, 2010; October 21,
2010; and October 22, 2010, but Complainant was not provided a copy of
the Performance Observation Form; and
3. On October 22, 2010, during or following a meeting, Complainant’s
supervisor told Complainant that she was a thief.
On February 17, 2011, the Agency dismissed Complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
Specifically, the Agency determined that Complainant did not allege
actions that rendered her aggrieved or conduct that was sufficiently
severe or pervasive to constitute a hostile work environment. As a
result, the Agency dismissed the complaint for failure to state a claim.
On appeal, Complainant restates her allegations that she has been
subjected to harassment and a hostile work environment.1
ANALYSIS AND FINDINGS
Federal regulations 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 or applicant for employment who believes that he or 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;
29 C.F.R. § 1614.106(a). The Commission's Federal sector case precedent
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
The Court explained that an “objectively hostile or abusive work
environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it as
such. Harris, 477 U.S. at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Id. at 23.
Following a review of the record, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to show that she suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21,
1994). Moreover, we find that the claims, even if proven to be true and
viewed in a light most favorable to Complainant, would not indicate that
Complainant has been subjected to harassment that was sufficiently severe
or pervasive to alter the conditions of employment. See Cobb v. Dep’t
of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Finally,
the Agency’s alleged actions were not of a type reasonably likely
to deter Complainant or others from engaging in protected activity.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 23, 2012
Date
1 We note that on appeal, Complainant raises additional allegations,
including that her postal vehicle was removed and she was assigned
defective postal vehicles. The record reveals that Complainant already
raised the same claims in a previous complaint which was the subject
of another appeal before the Commission. Scott v. U.S. Postal Serv.,
EEOC Appeal No. 0120113109 (Nov. 29, 2011).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112486
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120112486