01A45208
11-29-2004
Joyce S. Phoonswadi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joyce S. Phoonswadi v. United States Postal Service
01A45208
November 29, 2004
.
Joyce S. Phoonswadi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45208
Agency No. 4E-800-0188-04
DECISION
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 a complaint dated June 16, 2004, complainant, a Letter
Carrier, PS-6, at the agency's Valmont Station in Boulder Colorado,
alleged that she was subjected to discrimination on the basis of sex
(female) when a coworker yelled and used profanity.<1>
In order to state a claim, a complainant must not only show that his
or her complaint falls within the purview of an anti-discrimination
statute enforced by the Commission. The complainant must also show,
on the face of the complaint, that he or she has sustained some harm in
the employment relationship. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Here, the event recounted by complainant, while indisputably rude,
does not appear to present a very severe incident; in other words, an
incident sufficient to alter complainant's work environment. Further,
the Commission has held that a remark or comment, unaccompanied by
concrete action -- a disciplinary action, for example -- is not a direct
and personal deprivation sufficient to render an individual aggrieved.
See, e.g., Gens v. Department of Defense, EEOC Request No. 05910837
(January 31, 1992). Accordingly, the Commission finds that complainant's
complaint does not state a claim and was properly dismissed by the agency.
Therefore, the agency's final decision dismissing complainant's complaint
is affirmed.
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
November 29, 2004
__________________
Date
1The record reflects that complainant approached a coworker about a
delivery issue. According to complainant, the coworker then said to a
supervisor, �Tell her [complainant] to get the fuck away from me!� This
is the sole incident cited in the complaint.