01a42894_r
09-17-2004
Lori E. Kleinberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lori E. Kleinberg v. United States Postal Service
01A42894
September 17, 2004
.
Lori E. Kleinberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42894
Agency No. 1F-857-0003-04
DECISION
On February 9, 2004, complainant filed a formal EEO complaint wherein
she claimed that she was subjected to a hostile work environment on the
basis of her disability (back, left leg) when on December 29, 2003, she
was informed by her shop steward that the Operations Support Specialist
had threatened her job during a Step One grievance meeting. Complainant
claims that this action continues a pattern of harassment against her.
By final action dated March 9, 2004, the agency dismissed the complaint on
the grounds of failure to state a claim. The agency determined that the
alleged comment did not cause complainant to suffer a personal harm or
loss with respect to a term, condition, or privilege of her employment.
The agency also concluded that the alleged remark was not sufficiently
severe to constitute harassment. Further, the agency determined that
the alleged comment constituted no more than a preliminary step to taking
a personnel action.
On appeal, complainant recites a litany of events and incidents over a
16-17 year period in an attempt to establish that the alleged incident
in the instant matter is part of a pattern of harassment against her.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. �1614.107(a)(1). To state a claim, complainant
must allege 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 is sufficiently
severe or pervasive to alter the conditions of complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find
that the alleged incident is not sufficiently severe or pervasive to
state a claim of hostile work environment harassment. We further find
that complainant did not suffer a personal harm or loss to a term,
condition, or privilege of her employment as a result of the alleged
remark. We note that complainant attempts to connect the alleged remark
with prior alleged acts of harassment. However, the record indicates
that throughout the processing of this complaint, complainant did not
specifically identify any incidents besides the threatening remark to
the shop steward that she intended to include as part of this complaint.
We find that the instant complaint fails to state a claim. Accordingly,
the agency's decision dismissing the complaint on the grounds of failure
to state a claim, pursuant to 29 C.F.R. �1614.107(a)(1), was proper and
is hereby AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2004
__________________
Date