0120091892
06-12-2009
Viola D. Johnson-Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Viola D. Johnson-Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091892
Agency No. 4H327002909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 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 January 22, 2009, complainant alleged that she was
subjected to discrimination on the bases of race (African-American) and
color (Brown) when she was subjected to her third route inspection within
six months. The inspections occurred on June 11, July 16, and October
29, 2008. In its final decision, the agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal followed. Complainant does not make any new arguments
on appeal.
To the extent that the agency dismissed the matter for untimely EEO
counselor contact, stating that complainant did not contact the EEO
counselor until December 8, 2008, the Commission disagrees. The Commission
finds complainant is alleging she is receiving route inspections too
frequently and as such her EEO counselor contact was within 45 days of
the third inspection. Complainant would not have known of the frequency
when the first or second inspection was given.
However, 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. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant does
not allege that any adverse action occurred as a result of the route
inspections. Moreover, to the extent that complainant is alleging that
she was being subjected to discriminatory harassment, we note that a
complainant may assert a cause of action if the discriminatory conduct
was so severe or pervasive that it created a work environment abusive to
complainant because of her race, gender, religion, national origin, age or
disability. Rideout v. Department of the Army, EEOC Appeal No. 01933866
(November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
22 (1993)) request for reconsideration denied EEOC Request No. 05970995
(May 20, 1999). In applying this standard to this case, we conclude
that the events as described by complainant, even assumed to be true
and considered together, do not create a direct and personal deprivation
sufficient to render her aggrieved for the purposes of Title VII.
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
June 12, 2009
__________________
Date
2
0120091892
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091892