01A45219
11-18-2004
Arlene C. Saitta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arlene C. Saitta v. United States Postal Service
01A45219
11-18-04
.
Arlene C. Saitta,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45219
Agency No. 1C-151-0038-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2004, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
basis of reprisal (prior EEO activity) when: (1) she was harassed by
her acting supervisor, on February 28, 2004, after he reminded her of
the rules for speaking with visitors; and (2) on May 1, 2004, when her
acting supervisor harassed her regarding her work performance.
The agency issued a final decision (FAD) dismissing complainant's
complaint on the grounds that she stated the same claim that was pending
before or had already been decided by the agency or the Commission in
accordance with 29 C.F.R. � 1614.107(a)(1). This appeal followed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or the Commission.
Claim 1
According to the agency, the issues that were raised in the present
case are the same matters that were raised in informal complaint
no. 1C-151-0028-04. On February 27, 2004, complainant and the agency
entered into a settlement agreement that resolved the informal complaint.
The agreement provided, among other things, that "the employees will
inform visitors to respect the supervisor when requesting to speak
with other employees" and "according to postal service policy, both
[A-1,] Acting Supervisor and [complainant] agree to treat each other
with respect."
The next day, February 28, 2004, complainant stated that A-1 noticed her
speaking to a co-worker. When the co-worker left, A-1 called her to
his desk. According to complainant, A-1 was rude and unprofessional
to her. She also felt that he tried to embarrass her in front of
her co-workers. A-1 stated that, when he returned to his section, he
noticed that complainant had a visitor; therefore, he asked her to come
to his desk and reminded her of the settlement agreement.
In its FAD, the agency indicated that complainant initially maintained
that the agency had violated the terms of the settlement agreement.
After an investigation, the agency concluded that there had not been
a breach of the agreement; therefore, the agency concluded that claim
(1) should be dismissed on the grounds that it stated the same claim
as that raised in informal complaint no. 1C-151-0028-04. We disagree.
The proper grounds for dismissing claim (1) is that it fails to state a
claim under the EEOC regulations. Nothing in the record indicates that
complainant suffered any 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).
Complainant failed to explain how this incident rendered her aggrieved.
Remarks or comments, unaccompanied by any concrete agency action, are
not usually sufficient to render an employee "aggrieved" for purposes
of stating a valid employment discrimination claim. See Nelson
v. Department of Defense (Defense Contract Audit Agency), EEOC Appeal
No. 01A13907 (Sept. 25, 2001). Finally, to the extent that complainant
contends that this incident created a hostile work environment, we do not
find that this isolated event was sufficiently severe or pervasive enough
to state a claim of discriminatory harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Consequently, we AFFIRM the dismissal of this claim.
Claim 2
On May 1, 2004, complainant told A-1 that she could not sweep mail and
showed him a doctor's note to that effect. According to complainant,
A-1 told her to case mail in the Mixed States Section. Complainant
maintained that other light duty employees, who could not sweep mail,
were not told to case mail and were allowed to go to the break area.
The agency also dismissed Claim (2) on the grounds that it stated the same
claim that was pending before or decided by the agency or the Commission.
The agency, however, did not provide any analysis in its FAD or evidence
in the record that would support a determination that this matter was
previously raised by complainant. Therefore, we find the dismissal of
Claim (2) was improper and is REVERSED.<1>
ORDER (E0900)
The agency is ordered to process Claim (2) in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to the complainant that
it has received Claim (2) within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____11-18-04______________
Date
1Unlike Claim (1), we find that Claim (2) does
state a claim. According to complainant, she was treated differently
than other limited duty employees because of her previous EEO activity.
If true, complainant would have suffered a harm or loss with respect to
a term, condition, or privilege of her employment.