0120093672
12-18-2009
Diana Simon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diana Simon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093672
Agency No. 4A-100-0100-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 29, 2009, dismissing her formal 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.
On July 1, 2009, complainant filed a formal complaint. Therein,
complainant claimed that she was subjected to discrimination on the
basis of sex when:
1. on May 5, 2009, her supervisor stood behind her and stared at her in
a sexual manner and has continuously harassed her since that day; and
2. on May 6, 2009, she was denied a Notice of Traumatic Injury and Claim
for Continuation of Pay/Compensation form CA-1. 1
In its July 29, 2009 final decision, the agency dismissed claim 1
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency found that complainant failed to show she
suffered a personal loss or harm to a term, condition or privilege of
her employment. The agency determined that complainant's supervisor's
actions failed to rise to the level of an adverse action. Furthermore,
the agency concluded that the alleged acts did not rise to the level of
harassment.
The agency also dismissed claim 2 for failure to state a claim.
The agency determined that claim 2 constitutes a collateral attack
on the Department of Labor's Office of Workers' Compensation Program
(OWCP) process.
Claim 1
EEOC regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
To state a claim, complainant must alleged 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 condition
of complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993).
Complainant did not suffer a personal loss or harm regarding a term,
condition or privilege of her employment in connection with the cited
incident. Moreover, the Commission determines that the matters at issue
are insufficient to state a claim of harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Therefore,
we find that the agency properly dismissed claim 1 for failure to state
a claim.
Claim 2
The agency properly dismissed claim 2 for failure to state a claim.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised her challenges to regarding the OWCP claim was with the
Department of Labor.
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 18, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 2.
??
??
??
??
2
0120093672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093672
5
0120093672