01A23811_r
08-06-2003
Shirley A. Fox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shirley A. Fox v. United States Postal Service
01A23811
August 6, 2003
.
Shirley A. Fox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23811
Agency No. 4E-800-0099-02
DECISION
In an EEO complaint dated March 23, 2002, complainant, a Rural Carrier,
R-00/12, claimed that she was subjected to discriminatory harassment on
the bases of her sex (female) and age (dob 9/16/41). The agency defined
the relevant incident as being that on January 4, 2002, the Postmaster
threatened to dismiss complainant because complainant did not understand
how to process a �signature waived� express. The EEO Counselor's report
states that complainant claimed that the harassment by the Postmaster
had been ongoing since June 2000.
By final action dated June 3, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to
state a claim and alternatively, pursuant to 29 C.F.R. �1614.107(a)(5).
The agency determined that as a result of an investigative interview,
no action against complainant was taken and the matter was not cited in
complainant's official personnel file.
On appeal, complainant contends with regard to the incident of January 4,
2002, that the Postmaster cursed her in a loud voice and was threatening
toward her. According to complainant, his face was very red, his eyes
were bulging, and he had a violent body posture. Complainant submits
documentation that was also presented during the informal EEO counseling
process to show that the harassment against her has been ongoing.
According to complainant, the Postmaster denied her use of a fan in
her work area; accused her of not placing a registered parcel in the
proper location; and he refused to provide her with documentation of
disciplinary meetings.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court found that harassment is actionable, even absent a claim that
any agency's action harmed complainant in a specific term, condition,
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Initially, we find that the agency improperly framed the issue in
the instant complaint. A clear reading of the complaint and the EEO
Counselor's report evidences that complainant is claiming the presence
of a hostile work environment based on the alleged incident of January
4, 2002 and prior incidents that occurred over a two year period.
It is clear that complainant did not intend to claim that the January
4, 2002 incident was an isolated incident, but rather was part of a
pattern of ongoing harassment against her. However, considering these
claims as a whole, in the light most favorable to complainant, we find
that the incident of January 4, 2002, and the other specific incidents
referenced by complainant are not of sufficient severity or pervasiveness
to constitute harassment. We further find that the alleged actions did
not cause complainant to suffer harm to a term, condition, or privilege
of her employment. Accordingly, the agency's dismissal of the complaint
on the grounds of failure to state a claim was proper and 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
August 6, 2003
__________________
Date