01A42506
07-01-2004
Marguerite E. Edwards, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Marguerite E. Edwards v. United States Postal Service
01A42506
July 1, 2004
.
Marguerite E. Edwards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A42506
Agency Nos. 1K-209-0029-02, 1K-209-0025-03, 1K-209-0027-03
Hearing No. 120-2004-00014X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final action in the above-entitled matter.
In her three complaints of unlawful employment discrimination, which
were consolidated by the EEOC Administrative Judge (AJ) pursuant to 29
C.F.R. � 1614.606, complainant alleged the following:
The agency discriminated against her on the bases of race
(African-American/Black) and color (black), in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., when (a) on June 11, 2002, a supervisor was sitting
in his office with his shirt unbuttoned, his T-shirt rolled up to his
neck and his body exposed from the waist up; and, (b) on July 24, 2002,
she was instructed to report to the Plant every day at 11:30 a.m. to
work in the 044 Section.
The agency discriminated against her on the bases of race and in
retaliation for prior EEO activity<1> when, on March 19, 2003, her
request for 30 minutes of leave at the end of her tour and no lunch
was denied.
The agency discriminated against her on the bases of race and retaliation
for prior EEO activity when (a) on May 5, 2003, complainant received
a memorandum changing her work schedule; and, (b) on or about May 8,
2003, complainant received a memorandum abolishing her position as a
General Clerk.
The agency dismissed Claim 1(a), for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1), and for untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ affirmed the agency's
dismissal because he found that Claim 1(a) failed to state a claim.
The Commission affirms the dismissal of Claim 1(a), for failure to state
a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant has failed
to show how as a result of this claim, she suffered a harm to a term,
condition or privilege of her employment for which there is a remedy.
Moreover, we do not find that this claim is sufficiently severe or
pervasive to state a claim of harassment.<2>
Regarding the remaining claims, after a review of the record in its
entirety, including consideration of all statements submitted on appeal,
it is the decision of the Equal Employment Opportunity Commission to
affirm the agency's final action, because the AJ's issuance of a decision
without a hearing was appropriate, see Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003), and a preponderance of the
record evidence does not establish that discrimination occurred.
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
July 1, 2004
__________________
Date
1The agency does not dispute that complainant
engaged in prior EEO activity; however, the record is unclear as to the
statute(s) under which that activity arose.
2Since we are affirming the agency's dismissal of Claim 1(a) on the
ground of failure to state a claim, we will not address the agency's
alternative ground for dismissal, i.e., untimely EEO Counselor contact.