Delores A. Dunn, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 25, 2010
0120081148 (E.E.O.C. Mar. 25, 2010)

0120081148

03-25-2010

Delores A. Dunn, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Delores A. Dunn,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120081148

Agency No. DAL-07-2176-SSA

DECISION

Complainant filed an appeal concerning her complaint of unlawful

employment discrimination following the agency's December 17, 2007 final

agency decision dismissing her complaint. 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. Complainant

alleged that she was subjected to harassment on the bases of race

(African American), age (over 40) and other (union representative) when:

1. On June 4, 2007, complainant was subjected to reprisal on two occasions

when on her way to the restroom she stopped and talked to co-workers,

at different times, and in both instances Operations Supervisor A stood

at the end of the aisle to infer that she move on.

2. On June 7, 2007, Operations Supervisor B, complainant's supervisor,

informed her that she may start following her to the restroom as the

result of a manager reporting the June 4, 2007, incident to her.

3. On June 22, 2007, Operations Supervisor C approached complainant while

she was talking to co-workers and questioned whether complainant was on

break or at lunch.

The Commission finds that the complaint fails to state a claim under

the EEOC regulations. Nothing in the record indicates that complainant

suffered any harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. There is no indication that

any of the identified management officials took any disciplinary action

against complainant as a result of the alleged incidents. Additionally,

the Commission does not find that complainant's claims are sufficiently

severe or pervasive so as to state a claim of harassment. Further,

we find that the agency's dismissal of "other (union representative)"

as a basis in this complaint was proper, as this basis is not within the

purview of the EEO statutes. Moreover, the Commission finds that where,

as here, a claim fails to render an individual aggrieved, it does not

convert into a cognizable claim because complainant requests compensatory

damages for physical or emotional injury. See Girard v .Department of

the Treasury, EEOC Request No. 05940379 (September 9, 1994).

Finally, we note the record reveals that on February 1, 2008, complainant

requested a hearing on the subject complaint before an EEOC Administrative

Judge (AJ). On February 26, 2008, the AJ dismissed complainant's

hearing request because the agency had already issued its December 17,

2007 final decision, at issue here, dismissing her complaint for failure

to state a claim.1

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 25, 2010

__________________

Date

1 Complainant's briefs dated February 15, 2008, and March 3, 2008,

were untimely filed and are not considered in the present decision.

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0120081148

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013