Candy L. Maloney, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 18, 2006
01a61804 (E.E.O.C. Jul. 18, 2006)

01a61804

07-18-2006

Candy L. Maloney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Candy L. Maloney,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A61804

Agency No. 4G-770-0066-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated January 5, 2006, 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.

On December 21, 2005, complainant filed the instant complaint. Therein,

complainant claimed that she was subjected to unlawful employment

discrimination on the bases of race (Caucasian) and in reprisal for

prior EEO activity when:

(1) on unspecified dates, she was instructed by her supervisor to re-due

her case labels and to get rid of her two wings on case;

(2) on an unspecified date, she was denied use of a Long Life Vehicle

(LLV); and

(3) on December 1, 2005, she was given a pre-disciplinary discussion

(pre-d) for failing to follow instructions after she alleged that

a supervisor threatened her, stating that she was going to harass

complainant.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim finding that complainant was not aggrieved

regarding the matters identified therein.

On appeal, complainant contends that she was subjected to continuous

acts of discrimination and harassment when on January 7, 2006, she was

issued a "Work Performance Discrepancies" note and was singled out when

she was ordered to deliver catalogs in a timely manner; on January 12,

2006, she was instructed not to use the bathroom; on January 20, 2006,

she was issued a notice of 7-day paper suspension; on January 24,

2006, she was written up for unendorsed mail and was called into the

Postmaster's office; on January 26, 2006, she was forced to work on her

day off; and on February 6, 2006, the Postmaster instructed her union

representative not to say a word during her quarterly review.

Upon review, the Commission agrees with the agency that the alleged

incidents do not address a personal loss or harm regarding a term,

condition or privilege of complainant's employment as a result of the

alleged incidents, and are not of a type reasonably likely to deter

complainant or others from engaging in protected activity. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994); Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999)

(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). Moreover,

a review of the record reflects that the matters in question are

insufficient to support a claim of harassment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Therefore,

we find that the agency properly dismissed the complaint for failure to

state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

Finally, the Commission notes that on appeal, complainant raises a variety

of new claims of harassment relating to additional actions purportedly

taken by her supervisor and Postmaster. We note that these claims were

not previously raised. It is therefore inappropriate for complainant to

raise these new claims for the first time as part of the instant appeal.

Accordingly, the agency's final decision dismissing the instant complaint

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

July 18, 2006

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A61804

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