0120103122
12-02-2010
Jeanne M. Olivieri, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Jeanne M. Olivieri,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103122
Agency No. 4H320005010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 8, 2010, 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.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her
to discrimination on the bases of race (Caucasian), color (White) and
disability (back and neck injuries) when:
1. On August 3, 2009, Complainant was subjected to humiliation and
harassment and was treated differently by management than another employee
who engaged in harassing behavior towards Complainant; and
2. Management did nothing when Complainant was harassed by a Black
coworker (CW1) and it was only when CW1 harassed another Black coworker
(CW2) that management decided to issue discipline to CW1.
Complainant requested that the complaints be processed separately.
However, the Agency processed the complaints together but characterized
the claims differently, listing them as follows: on August 3,
2009, during a meeting Complainant was subjected to humiliation and
harassment; Complainant was harassed by a fellow employee on August 22,
26, September 1, October 2, 3, 6, and November 6, 2009; on September
8, 2009, Complainant was bumped into by a fellow employee; and on an
unspecified date, Complainant's complaints of harassment were handled
differently than those of a fellow employee.
The Agency dismissed the claims for failure to state a claim, finding that
the actions did not render Complainant aggrieved and were insufficient
to constitute harassment. On appeal, Complainant makes no new argument
but requests that we reverse the FAD.
ANALYSIS AND FINDINGS
We note initially that under 29 C.F.R. � 1614.606, agencies may
consolidate cases filed by the same Complainant and hence we deny
Complainant's request to have the complaints processed separately.
Following a review of the record, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to show that she was subjected to unwelcome verbal or physical
conduct involving her protected classes, that the harassment complained of
was based on her statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with her work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has she shown she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). 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
December 2, 2010
__________________
Date
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0120103122
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103122