01a02643
07-11-2000
Katie Matthews, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.
Katie Matthews v. United States Postal Service
01A02643
July 11, 2000
.
Katie Matthews,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes/Mid West Region),
Agency.
Appeal No. 01A02643
Agency No. 4J606016898
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1> Complainant alleged that she was discriminated
against on the basis of race(black) when on February 17, 1998, complainant
was accused of swearing; given a verbal warning; and denied union
representation.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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. �81614.103,
.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).
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). The verbal warning posed by complainant's
supervisor was not accompanied by any concrete action. We therefore
find that the incidents addressed in complainant's formal complaint
do not allege a personal loss or harm suffered with respect to a term,
condition, or . privilege of employment sufficient to render complainant
aggrieved for purposes of Title VII.
Even where a complaint does not challenge an agency action or inaction
regarding a term, condition or privilege of employment, the complainant
may still state a claim if the complaint allegations are sufficient
to state a hostile or abusive environment claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing
Harris v. Forklift Systems, Inc., 510 U.S. 17 , 21; 114 S. Ct. 367, 370
(1993). In Harris v. Forklift Systems, Inc., the Supreme Court reaffirmed
the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 , 67 (1986))
that harassment is actionable if sufficiently severe or pervasive as 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 only actionable if
the harassment to which the complainant has allegedly been subjected
was sufficiently severe or pervasive as 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. A trier of fact must consider all of the alleged harassing
incidents and remarks, and considering them 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). However Commission precedent holds that unless the
conduct is very severe, a single incident or group of isolated incidents
will not be regarded as creating a discriminatory work environment. James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994).
Just as complainant is not aggrieved based on this event because
she does not allege a personal loss or harm suffered with respect
to a term, condition or privilege of employment, she also is not
the victim of a hostile work environment. The complaint challenges
an isolated incident which is not severe enough to state a claim of
discriminatory harassment. Zhang v. United States Postal Service, EEOC
Request No. 05940481 (July 17, 1998) (Supervisor yelling at complainant
on one occasion is not a very severe incident, i.e., not an incident
sufficient to alter complainant's work environment). Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.