01A14984_r
11-14-2001
Billie Lau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Billie Lau v. United States Postal Service
01A14984
November 14, 2001
.
Billie Lau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14984
Agency No. 4-F-956-0081-01
DECISION
On August 11, 2001, complainant appealed to this Commission from the
agency's August 9, 2001 dismissal of her employment discrimination
complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1).<1> In her complaint, complainant alleged harm on the
bases of race (Asian), sex (female), national origin (Chinese), and in
reprisal for prior EEO activity when:
On February 3, 2001, a supervisor yelled at complainant in front of
others; and
On February 5, 2001, complainant was struck on the head by keys thrown
by the same supervisor.
In its dismissal, the agency explained that on February 3, the supervisor
yelled �stop� to get complainant's attention and finish giving her
instructions when she started to walk away. The agency also found that
the supervisor was attempting to throw the keys to another supervisor, and
inadvertently hit complainant. In concluding that complainant suffered
no actionable harm, the agency noted that the yelling comprised a single,
minor incident, and complainant required no medical treatment for being
struck by the keys.
In her formal complaint and on appeal, complainant described the
key-throwing incident as �horseplay� that resulted in complainant's
unintentional injury. Complainant, through her attorney, urges the agency
to take action under its �no tolerance� policy with regard to workplace
violence. Complainant also argues that the agency's definition of the
claims is overly restrictive, but fails to identify any claim the agency
failed to define properly.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Hostile work environment harassment is actionable if it
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The single incident of complainant being told to �stop,� along with
being hit in the head by keys as a result of what complainant's attorney
describes as horseplay, does not state a claim of hostile work environment
on prohibited bases. Accordingly, the agency's dismissal 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
November 14, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1By letter dated July 30, 2001, complainant's attorney requested that
the agency consolidate complainant's claim of breach of a May 16,
2001 settlement agreement in Agency No. 4-F-956-0115-00, EEOC Hearing
No. 370-A1-X2230, and the present complaint. In its dismissal, the
agency failed to address the breach claim. Since complainant failed
to raise the breach claim on appeal, the Commission will not accept
jurisdiction over Agency No. 4-F-956-0115-00.