0120100825
07-27-2011
Brenda I. Martinez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Brenda I. Martinez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120100825
Agency No. 1B011000609
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 16, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency’s Processing and Distribution Center in
Springfield, Massachusetts. On October 26, 2009, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination
on the basis of her sex when: (1) on July 8, 2009, she was witness to
inappropriate sexual comments by a management official, and management
failed to respond appropriately when she complained about the comments;
and (2) on August 12, 2009, her supervisor made disparaging remarks
about her in his response to her grievance.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. Specifically, the Agency
found that Complainant was not aggrieved, and that she failed to show
that the incidents alleged were sufficiently severe or pervasive to state
an actionable claim of harassment. On appeal, Complainant contends
that the management official at issue in claim (1) made several other
inappropriate comments in her presence, and that the Agency has not
satisfactorily addressed her concerns.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because Complainant failed to show that she
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Dep't of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994). Moreover, to the extent
Complainant is claiming a discriminatory hostile work environment, the
Commission finds that the events described, even if proven to be true,
would not indicate that Complainant has been subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions of
her employment. See Cobb v. Dep't of the Treasury, Request No. 05970077
(Mar. 13, 1997). In so finding, we note that Complainant does not allege
that she was the subject of any inappropriate comments, nor does she
allege that any of the comments at issue were addressed to her.
CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 27, 2011
__________________
Date
2
0120100825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100825