01a54587
10-05-2005
Margaret Solivan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.
Margaret Solivan v. United States Postal Service
01A54587
October 5, 2005
.
Margaret Solivan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A54587
Agency No. 1A-007-0021-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 11, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of national origin (Puerto Rican), sex (female), and in reprisal
(not specified) when from August 2003 to the present, complainant was
subjected to ongoing sexual harassment by a co-worker which created a
hostile work environment. Complainant specifically alleged that (1)
her co-worker has demonstrated physical violence while off the job by
stalking her; (2) her co-worker follows her while she is driving her car,
and has created traffic situations, whereby he slams on the brakes to try
and get her to have an automobile accident; (3) her co-worker has robbed
her personal information (social security number and credit information);
(4) her co-worker has violated her privacy by accessing her clock rings
and employment records; (5) her co-worker has made false accusations
against her regarding misuse of her leave; (6) she has to take different
routes to go to the cafeteria because management has failed to take action
and has not kept her co-worker away from her. The agency dismissed her
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2), and also found that these claims were not part of a
continuing violation because complainant failed to provide sufficient
evidence to establish when she first suspected discrimination when
complainant initiated EEO Counselor contact on September 28, 2004.
We need not address the agency's dismissal for untimely EEO Counselor
contact for claims (1) through (4) because the Commission does not have
jurisdiction over these types of claims. Specifically, claims (1) through
(3) involve criminal allegations that fall outside the purview of the EEOC
Regulations, pursuant to 29 C.F.R. � 1614.103, and claim (4) involves
a Privacy Act violation where complainant alleged that her co-worker
violated her privacy. The Commission has held that jurisdiction over
alleged violations of the Privacy Act rests exclusively with United States
District Courts. See Story v. USPS, EEOC Appeal No. 01953767 (October 18,
1995); Concon v. USPS, EEOC Appeal No. 01965280 (May 14, 1997)(allegation
that Privacy Act violated when a supervisor allegedly allowed a coworker
to read complainant's CA-1 form and coworker discussed its contents
with other employees failed to state a claim because allegation of a
Privacy Act violation is not within the purview of the EEO process);
see also Bucci v. Department of Education, EEOC Request No. 05890289
(April 12, 1989) (alleged violation of the Privacy Act is outside the
purview of the EEO process); Osborn v. USPS, EEOC Request No. 05950654
(February 15, 1996).
As for the two remaining claims, we find that they are more appropriately
dismissed for failure to state an actionable claim of harassment,
pursuant to 29 C.F.R. � 1614.107(a)(1), rather than for untimely EEO
Counselor contact. Under EEOC regulations, 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. See 29 C.F.R. �� 1614.103, 106(a) (2004). The Commission's
federal sector case precedent has long found an �aggrieved employee�to
be one who �has suffered direct and personal deprivation at the hands of
the employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.)
It is possible for an employee to be considered aggrieved, even absent a
claim that an agency's action harmed complainant in a specific term,
condition, or privilege of employment, as long as complainant can
otherwise demonstrate that the conduct was engaged in with the purpose
of creating a hostile work environment, and also that the conduct
was sufficiently severe or pervasive as to alter the conditions of
complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17 (Nov. 9, 1993); see also Cobb v. Dep't of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). In the case-at-hand,
complainant has failed to show how the alleged accusations made
by complainant's co-worker and how taking a different route to the
cafeteria is sufficiently severe or pervasive as to rise to the level of
stating a claim of harassment. Further, complainant failed to provide
evidence in the record of the agency's non-action regarding her claims
of harassment.
Accordingly, complainant therefore fails to state an actionable claim,
and 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
October 5, 2005
__________________
Date