0120092850
01-15-2010
Incha Krein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Incha Krein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120092850
Agency No. 4E55301209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 26, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Korean), national origin (Korea), sex (female), color
(yellow), disability (neck, back, shoulder, work injury), age (50), and
reprisal for prior protected EEO activity when beginning February 12,
2008 and ongoing, complainant has been subjected to harassment regarding
leave requests, work performance, union time, medical documentation,
overtime requests and other general harassment from co-workers.
Specifically, complainant points to the following incidents regarding
her claim of harassment:
1. On December 19, 2008 the agency denied her 2.5 hours of annual leave;
2. On February 18, 2009, complainant's request for leave for March
14-23, 2009 was initially denied but later approved following union
intervention;
3. On November 12, 2008, complainant's co-workers harassed her;
4. On various dates, complainant was questioned about and or denied
union time;
5. On various dates, complainant was questioned about her work hours
including questions about overtime usage;
6. On various dates, the agency excessively watched her;
7. On April 17, 2009, complainant was called into a meeting during which
a co-worker criticized her; and
8. On April 22, 2009, complainant was instructed to provide medical
documentation for an upcoming OWCP, LWOP absence.
The agency dismissed claims 1 and 2 as moot in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(5). However, the Commission finds
that claims 1 and 2 are more appropriately analyzed to determine whether
or not they state a claim. The record in this matter discloses that
despite complainant's claim that her leave requests as stated in claims
1 and 2 were denied, both leave requests were approved. Complainant has
presented no argument or evidence to contradict the agency's finding
regarding claims 1 and 2. Therefore, the Commission finds that concerning
claims 1 and 2, complainant has failed to demonstrate that she suffered
any harm. 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). Accordingly, the
Commission finds that claims 1 and 2 were properly dismissed pursuant
to EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
Complainant further alleges that on various dates, she was questioned
about and or denied union time. In its final decision the agency
determined that complainant's claim regarding union time, is not
within the purview of the EEO Regulations. We agree. Claim 4 would
be more properly pursued under the collective bargaining agreement.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forum's proceedings.
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 his challenges to the denial of union time,
is through the agency's collective bargaining agreement. Accordingly,
the agency's decision dismissing complainant's specific claim that she
was denied union time is affirmed.
The Commission finds that complainant's remaining complaint allegations,
3, 5 6 and 7, fail to state a specific claim of employment discrimination.
Complainant has not demonstrated that with respect to claims 3, 5, 6, and
7 that she has suffered harm concerning a term, condition or privilege
of her employment. The record does not indicate that complainant was
disciplined, or that any of the terms of her employment were changed by
the agency's alleged conduct. In that regard, we find that the agency's
dismissal of claims 3, 5 and 6 for failure to state a claim was proper.
Upon careful review of the instant matter, the Commission finds
that complainant has failed to demonstrate that she was subjected
to discriminatory harassment. In Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter
the conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:" and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The record does not establish that the agency's alleged
conduct was so server and pervasive that it altered the conditions of
complainant's employment.
In reviewing the instant matters in the light most favorable to
complainant, the Commission finds that complainant has failed to state
a claim of harassment. Accordingly, the agency's decision dismissing
complainant's complaint is hereby affirmed for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 15, 2010
__________________
Date
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0120092850
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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