01A43794_r
11-17-2004
Sheila Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sheila Thompson v. United States Postal Service
01A43794
November 17, 2004
.
Sheila Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43794
Agency No. 1E-837-0003-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 4, 2004, 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 sex when:
On December 3, 2003, complainant was required to use a wheel chair when
the medical documentation she submitted was incomplete;
On December 8, 2003, complainant was asked if she had taken any long
breaks lately;
On an unspecified date, complainant was questioned why she took leave
and was told to go to lunch; and
On unspecified dates, complainant believes she is being underpaid by
her supervisor when she runs the AFCS machines.
The agency dismissed claims (1), (2), and (3), pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency found
complainant was not aggrieved by any of the incidents described, nor
were the incidents sufficiently severe or pervasive to state a claim
of harassment. The agency dismissed claim (4) pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds that complainant had failed to bring this
claim to the attention of the EEO Counselor and is not like or related
to any claims raised with an EEO Counselor.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that complainant was not aggrieved by the incidents
in claims (1), (2), or (3). Furthermore, we find that the incidents in
claims (1), (2), and (3), when considered together, are insufficiently
severe so as to state a claim of harassment. Therefore, we find that
claims (1), (2), and (3), were properly dismissed for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission finds that claim (4) was not raised in EEO counseling
and is not like or related to any matters raised in EEO counseling.
Therefore, we find that claim (4) was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2).
The agency's decision dismissing the 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 17, 2004
__________________
Date