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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