01a61292
05-10-2006
Anna Widelock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anna Widelock,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61292
Agency No. 1A-111-0056-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 23, 2005, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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. In a complaint dated October
28, 2005, complainant alleged that the agency discriminated against her
on the basis of reprisal for prior protected EEO activity when, on July
21, 2005, an agency manager questioned complainant about her physical
restrictions and her ability to work on Saturdays and did so in a loud
and threatening manner on the telephone.
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 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,
.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 addition, the Commission has held further that
where a complaint does not challenge an agency action or inaction
regarding a specific term, condition, or privilege of employment, the
claim may survive as evidence of harassment if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the
harassment is sufficiently severe to trigger a violation of EEO statutes
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, 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. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995). Finally, when reprisal
is alleged, as in the instant case, adverse actions need not materially
alter the terms and conditions of employment to state a viable claim,
but rather must be based on retaliatory motivation and be reasonably
likely to deter complainant or others from engaging in protected activity.
EEOC's Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20,
1998).
We find that complainant failed to show that she suffered a harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy, that the agency's action rose to the level of a
hostile work environment or was reasonably likely to deter complainant
or others from engaging in protected activity. Accordingly, we affirm
the agency's dismissal of the instant complaint.
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
May 10, 2006
__________________
Date
2
01A61292
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A61292