0120100025
03-24-2010
Connie A. Cardwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Connie A. Cardwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120100025
Agency No. 4G-760-0119-09
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated September 2, 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.
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. For the following reasons we AFFIRM the final agency
decision (FAD).
In a complaint dated August 18, 2009, complainant alleged that she was
subjected to discrimination on the basis of sex (female) when, on July
8, 2009, complainant's supervisor (S1) yelled at her when she failed to
find someone to deliver an Express Mail piece as instructed.
The record reveals that, on July 8, 2009, complainant was working at her
post on the check-in cart when a piece of Express Mail came in that needed
to be delivered in the next couple of hours. Complaint at 3. S1 told
complainant that she was responsible for finding someone to deliver the
piece of mail. Complainant informed S1 that she could not leave her post
at the check-in cart. Id. A few minutes later, S1 called to see whether
complainant had done as instructed, and when complainant said that she
had not found anyone to deliver the piece of Express Mail, S1 became
upset and demanded that she go to his office. Id. Complainant started
to leave to go to the Officer in Charge's office instead for assistance,
but was met in the hallway by S1, who began yelling at her. Id. at 4.
Complainant stated that after the incident, complainant felt tightness
in her chest and was extremely anxious. Id. Complainant stated that,
later that night, she suffered a heart attack. Id.
In its FAD, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a) for failure to state a claim of harassment. The agency
found that complainant failed to establish that she had suffered a loss
or harm with respect to a term, condition, or privilege of employment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the
Supreme Court held that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of complainant's employment.
An "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive," and the complainant
subjectively perceives it as such. Harris, at 21-22.
Where a complaint does not challenge an agency action regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if the alleged harassment was sufficiently severe or
pervasive to alter the conditions of complainant's employment. Id. at 21.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that complainant cannot prove a set of facts
in support of the claim which would entitle complainant to relief.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The trier of fact must consider all of the alleged harassing
incidents and remarks in the light most favorable to complainant, and
determine whether they are sufficient to state a claim. Id.
In the instant case, complainant has alleged discrimination on the
sole basis of sex. Complainant makes general allegations that S1 has
a history of treating women badly, but offers no examples of behavior
to suggest that she was treated less favorably because of her sex.
Complainant alleges that S1 "micromanages" her work assignments and
assigns her extra duties. Title VII is not a civility code. Rather, it
forbids "only behavior so objectively offensive as to alter the conditions
of the victim's employment." Epps v. Department of Transportation, EEOC
Request No. 0120093688 (December 18, 2009); Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998). In the instant case, the record
does not show that S1's behavior rises to this level. While it is clear
from the record that complainant and S1 do not get along, taking the
incidents as a single allegation of harassment, we find that the incident
was not sufficiently severe or pervasive to state a claim of harassment.
Accordingly, the Commission affirms the FAD dismissing complainant's
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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
March 24, 2010
Date
2
0120100025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100025