01a54308
10-13-2005
Elizabeth Guzman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Elizabeth Guzman v. United States Postal Service
01A54308
October 13, 2005
.
Elizabeth Guzman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A54308
Agency No. 4A-100-0078-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 2, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to harassment and discrimination on the bases of sex and
disability, and in reprisal for prior EEO activity when:
On February 19, 2005, she was threatened with discipline;
From November 1990 through February 2005, she was subjected to an ongoing
hostile work environment;
On November 6, 2004, her supervisor told her that she only complains
when assigned heavy workloads, and
In October 2004: (a) after telling her supervisor that she was on
modified carrier status, her supervisor told her she [the supervisor]
had had four heart attacks; (b) she was called Miss America, and (c)
she was threatened.
The agency dismissed the complaint in its entirety. Specifically,
the agency found that none of the allegations stated actionable claims.
Moreover, the agency found that allegations 2-4 had been untimely raised
to an EEO Counselor, and dismissed the harassment claim arguing that
she had failed to show that the conduct was severe or pervasive so as
to alter a term, condition or privilege of her employment.
Complainant submits a statement on appeal.<0> She argues that the
agency incorrectly dismissed her complaint for untimeliness because it
inappropriately separated her claims. The allegations should have been
viewed together as incidents of harassment. Complainant also argues
that the agency was mistaken in dismissing the complaint for failure
to state a claim because the agency failed to analyze the merits of
her claim, instead dismissing it using general, boilerplate language.
Complainant insists that her case must survive because she provided
specific allegations of discrimination with sufficient supporting evidence
and concrete details demonstrating the harm she suffered as a result of
the discrimination.
We disagree with complainant. Complainant's allegations fail to state
actionable claims and accordingly we dismiss her complaint.
First, we address complainant's argument on appeal that the agency failed
to analyze the merits of her allegations. We note that the agency was
under no obligation to undertake such an analysis because the agency
properly dismissed the matter on a procedural basis pursuant to 29
C.F.R. � 1614.107(a)(1) (2004). This provision of the EEOC's regulations
authorize an agency to dismiss an EEO complaint that fails to state a
claim for which relief can be granted. The standard that must be met
to justify a dismissal on this ground is similar to that required by
the courts under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the
Treasury, EEOC Request No. 0597007 (Mar. 13, 1997). Moreover, our case
law requires that the complainant be �aggrieved,� meaning, he or she
must have �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.). Under Section
107(a) the allegations in a complaint must be taken as true and all
reasonable inferences must be drawn in favor of the complainant. See id.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that no set of facts can be established that
would entitle the complainant to the relief sought in the complaint.
See id. (citing Conley v. Gibson, 355 U.S. 40, 45-46 (1957)).
Although complainant insists that she has provided sufficient facts and
evidence to support her claim and her entitlement to relief, we apply
the law of our precedence and find that she fails to prove herself
�aggrieved.� As such, she fails to raise an actionable claim. We simply
are not persuaded that the facts and evidence she has raised show that
the agency subjected complainant to acts that adversely affected a term,
condition or privilege of employment.
Nevertheless, we have held that where a complaint does not challenge
an agency action or inaction regarding a specific term, condition, or
privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993). Whether the harassment is sufficiently severe to trigger a
violation of EEOC statutes must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an
employee's work performance. See Harris, 510 U.S. at 23; Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994).
We agree with the agency that the facts alleged in the complaint do
not rise to the requisite level of severity or pervasiveness that
constitutes harassment as we have required in case law. It may be
that complainant was humiliated and even offended by certain conduct
she experienced; however, we find that a reasonable person faced with
these same circumstances would not consider such conduct to unreasonably
interferes with their work performance. We remind complainant that
the EEOC regulations are not to be used as a �general civility code.�
Rather, they forbid �only behavior so objectively offensive as to
alter the conditions of the victim's employment.� Onacle v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998); accord Vore v. Indiana
Bell Telephone Co., 32 F.3d 1167 (7th Cir. 1994) (noting that Title VII
does not create a right to work in a pleasant environment; merely one
that is free from discrimination�).
Accordingly, we affirm the final agency decision.
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:
October 13, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1We note that this statement is untimely.
She had thirty days from the date of filing her Notice of Appeal to submit
her statement. Although ordinarily such an untimely filing is grounds
for disregarding it, we use our discretion to overlook the tardiness
and consider complainant's arguments on appeal.