01A60788
04-07-2006
Danean Hammer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danean Hammer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60788
Agency No. 1F-853-0033-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 12, 2005, 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. 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 the instant formal EEO complaint, filed on September 1, 2005,
complainant alleged that the agency discriminated against her on the bases
of race/color (White), religion (Catholic), sex (female), disability
(Bipolar Disorder, ADDH, and Arthritis) and in reprisal for prior EEO
activity when (1) on May 12, 2005, a supervisor (S1) looked at her in a
demeaning manner, (2) on May 17, 2005, S1 gazed at complainant's chest,
poked his lips out, made strange faces at her, laughed, and then left
abruptly in his vehicle, (3) on May 18, 2005, S1 looked at complainant in a
demeaning manner, gazed at her chest, poked his lips out, made strange
faces at her, and laughed, (4) on May 18, 2005, a manager denied
complainant union representation and threatened to discipline her for not
cooperating with an investigation. Regarding incidents (1) through (3),
complainant alleged that S1 subjected her to sexual harassment.
On October 12, 2005, the agency issued a final decision dismissing
complainant's claim of sexual harassment for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). Also, the agency dismissed (4),
pursuant to 29 C.F.R. �� 1614.107(a)(1) & (5), on the grounds of failure to
state a claim and alleging a proposal to take a personnel action.
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).
We find that the agency's dismissal of (1) through (3) as a claim of sexual
harassment and (4) as an individual claim is correct. With regard to
allegations (1) through (3), we find that, although complainant viewed
these incidents as offensive, complainant has not established that these
incidents resulted in a personal harm or loss to a term, condition or
privilege of her employment. Moreover, the Commission does not find that
the events described by complainant are sufficiently severe or pervasive to
state a claim of discriminatory harassment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
We find that (4) fails to state a claim to the extent that it raises an
allegation of a violation of complainant's collective bargaining rights to
a union representative, as such an issue cannot be addressed through the
EEO process. Further, to the extent that complainant is contesting being
the subject of an internal investigation, this fact without more, such as
resulting disciplinary action, fails to render complainant aggrieved under
the EEOC's regulations. Shelly v. Department of the Treasury, EEOC Appeal
No. 01996655 (2000).
Because we affirm the agency's dismissal of (4) for failure to state a
claim, we find it unnecessary to address the agency's alternative grounds
of dismissal.
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
April 7, 2006
__________________
Date