0520120216
06-12-2012
Josephine E. Benton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Josephine E. Benton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520120216
Appeal No. 0120113453
Agency No. 1H-321-0027-11
DENIAL
Complainant timely requested reconsideration of the decision in Josephine E. Benton v. U.S. Postal Service, EEOC Appeal No. 0120113453 (December 2, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and hostile work environment harassment on the bases of race (African-American), sex (female), age (over 40), and reprisal for prior protected EEO activity when, on January 27, 2011, the Manager of Distribution Operations (M1) put her "in harm's way" of a co-worker (C1). In her formal complaint, Complainant stated that M1 paged C1 to a machine that was right in front of her, thereby violating Workplace Intervention Team guidelines that were put in place on August 4, 2010 to keep her and C1 apart. In addition, Complainant named M1 as the person responsible for the alleged discrimination.
The appellate decision affirmed the Agency's final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the appellate decision found that Complainant's claim of harassment was not sufficiently severe or pervasive to rise to the level of actionable harassment and was not reasonably likely to deter protected activity. In so finding, the appellate decision considered additional information, provided by Complainant on appeal, concerning alleged harassment by C1 and management's alleged failure to take appropriate action.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argued that her complaint was erroneously dismissed because she had provided numerous examples of C1's actions to show that she was the victim of ongoing workplace harassment. In addition, Complainant argued that the dismissal of her complaint would render the Agency's existing "Zero Tolerance Policy" null and void by allowing an atmosphere for harassment to continue unabated.
The Agency did not submit a response to Complainant's request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request does not establish that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Here, Complainant failed to demonstrate that the appellate decision clearly erred in dismissing her complaint for failure to state a claim. Complainant's claim, as stated in her formal complaint, is that M1 put her "in harm's way" of C1 when he allowed C1 to come near her on January 27, 2011. M1's action does not constitute the type of unwelcome verbal or physical conduct that we typically associate with harassing behavior. We note that much of Complainant's appeal and request for reconsideration focused on the alleged harassment by C1. Complainant is advised to initiate contact with an EEO Counselor if she wishes to pursue a claim of co-worker harassment.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120113453 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
_6/12/12_________________
Date
2
0520120216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120216