01A12857_r
07-19-2001
Judith A. Brining, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith A. Brining v. United States Postal Service
01A12857
July 19, 2001
.
Judith A. Brining,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12857
Agency No. 4-G-700-0142-00
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint pursuant to EEOC
Regulation 29 C.F.R. � 1614.107(a)(1). Complainant alleged that she was
discriminated against on the bases of race (Caucasian), sex (female), age,
and in reprisal for prior EEO activity when on April 3, 2000, complainant
was �reproved� by her manager for using profanity in response to a
coworker's remarks regarding complainant's appearance. In its dismissal,
the agency explained that complainant suffered no official discipline,
nor any harm to any term, condition, or privilege of her employment.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Hostile work environment harassment is actionable if it
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Standing alone, the matter alleged does not state a claim. Further, it
does not constitute a cognizable claim of harassment.<1> Accordingly,
the agency's dismissal 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
July 19, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the Commission has remanded other harassment claims raised by
claimant, in EEOC Appeal Nos. 01971782, 01985313, 01A11250, 01A11283,
01A11497, and 01A11531, the most recent of these matters occurred almost
one year prior to the current claim, and does not involve a �pattern� of
harassment that includes the present claim. Further, �to continually
allow complainant to add to existing complaints of harassment would
preclude the closure/resolution of any of complainant's EEO matters.�
Skrypka v. United States Postal Service, EEOC Appeal No. 01974300
(March 10, 1999), req. for recons. den., EEOC Request No. 05990601
(June 21, 2000).