0120091248
08-03-2009
Raven K. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raven K. Cox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091248
Agency No. 4J460015108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 17, 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.
In a complaint dated December 16, 2008, complainant alleged that she was
subjected to discrimination on the bases of race (African American), sex
(female), and color (Black). The agency characterized the complaint as
concerning a letter of decision complainant received on September 8, 2008,
removing her from agency employment. The agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(4) for having raised
this matter in an earlier appeal to the Merit Systems Protection Board
(MSPB). The instant appeal followed.
In complainant's appeal, she asserts:
I did not file my EEO based on the removal I received. I filed on the
harassment and biased remarks made to me by the Postmaster and POOM.
I continually tried to explain this to the [EEO] counselor, but she kept
telling me that she didn't think I had a case. I did not bring up the
issue of discrimination during my MSPB appeals because I felt the issues
were not related.
A fair reading of the formal complaint and related EEO counseling
documents in this matter reveals that complainant raised both the removal
and a harassment/hostile work environment claim during the EEO process.
To the extent that she raised her removal, the agency's dismissal is
correct as the record supports the conclusion that she raised this same
matter previously before the MSPB.
With regard to her harassment claim, complainant specifically alleged:
(1) the Postmaster made a number of "harassing" phone calls to her
home (which she did not describe); (2) that during meetings about her
termination, he said that complainant "liked to shoot [her] mouth off,"
cautioned her against arguing or debating, used Barry Bonds as an example
of someone who was going to jail for lying, and frequently interrupted
her and her representative; and (3) at some unidentified time said he was
having pigs feet and ribs at his installation. Accepting complainant's
clarification as cited in her appeal, the Commission finds that this
claim should also be dismissed, pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim because complainant failed to allege facts
that would show 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). The events described, even if proven to be true,
would not indicate that complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of her
employment. See Cobb v. Department of the Treasury, Request No. 05970077
(March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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
August 3, 2009
__________________
Date
Date
2
0120091248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091248