0120083579
12-08-2008
Debra A. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debra A. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083579
Agency No. 1J531003908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 26, 2008, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of age (50) and reprisal for prior protected EEO activity
under an EEO statute that was unspecified in the record when:
1. Between December 20071 and April 2008, Management subjected complainant
to discriminatory harassment.
The agency dismissed the claim for failure to state a claim, finding
that the alleged incidents were insufficiently severe to create a hostile
work environment. For the following reasons, we AFFIRM the FAD.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable.
Where a complaint does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001). A complaint should
not be dismissed for failure to state a claim unless it appears beyond
doubt that the complainant cannot prove a set of facts in support of the
claim which would entitle the complainant to relief. The trier of fact
must consider all of the alleged harassing incidents and remarks, and
considering them together in the light most favorable to the complainant,
determine whether they are sufficient to state a claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In her Formal Complaint, complainant specifically alleged the following
incidents of harassment: on February 4, 2008, a manager (RMO1) threatened
complainant with termination; in February 2008, RMO1 made unspecified
comments which caused coworkers to laugh at complainant; on February 20,
2008, complainant was yelled at to work the letter belt; on February 21,
2008, complainant was stared and laughed at and mail was thrown at her;
throughout March 2008, everything complainant did was reported to RMO1
and complainant was constantly watched; on March 17, 2008, complainant
was humiliated when her supervisor (RMO2) did not call complainant by
her name; on March 18, 2008, RMO1 did not keep his promise to meet with
complainant; on unspecified dates, a co-worker talked about complainant
to other employees; on March 25, 2008, complainant was ordered to take
her break in the break room; on unspecified dates, complainant was not
allowed to talk to coworkers; on April 3, 2008, a coworker was told
not to talk to complainant and on April 15, 2008, complainant was told
that there was a problem with other employees talking with her. In her
Informal Complaint, complainant included additional similar incidents.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant's allegations, even assumed to be
true, are not sufficient to show that she was subjected to unwelcome
verbal or physical conduct involving her protected classes, that the
harassment complained of was based on her statutorily protected classes,
and that the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has she alleged
that she suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
On appeal, complainant argues that due to the discriminatory actions
she incurred mental anguish and suffering. We note that the Commission
has long held that where an allegation fails to render an individual
aggrieved, the complaint is not converted into a cognizable claim
merely because complainant alleges physical and/or emotional injury.
See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
December 8, 2008
__________________
Date
1 We note complainant provided the date of December 2008 in her Formal
Complaint.
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0120083579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083579