0120113132
12-01-2011
Cherria A. Whiting, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Cherria A. Whiting,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113132
Agency No. 4H-370-0059-11
DECISION
Complainant timely filed an appeal with this Commission from the Agency's
decision dated May 23, 2011, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a City Carrier at the Agency’s Nashville, Tennessee Post Office. On May
2, 2011, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (African-American),
sex (female), color (unspecified), and age (47 years old) when, since
December 13, 2010, Complainant’s supervisor yelled at her; talked down
to her in a demeaning tone; left harassing messages about Complainant’s
absence from work; did not mark Complainant’s accountable mail; and
accused Complainant of lying.
On May 23, 2011, the Agency issued a final decision dismissing
Complainant’s complaint on the grounds that it failed to state a claim.
Specifically, the decision determined that Complainant’s complaint
did not allege actions that rendered her aggrieved or conduct that was
sufficiently severe or pervasive to constitute a hostile work environment.
ANALYSIS AND FINDINGS
The regulation set forth at 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. §§ 1614.103,
1614.106(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. Dep’t of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that he
or she is aggrieved, the agency shall dismiss a complaint for failure to
state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held
that where a complaint does not challenge an agency action or inaction
regarding a specific term, condition, or privilege of employment, the
claim of harassment may survive if it alleges conduct that is sufficiently
severe or pervasive to alter the conditions of the complainant’s
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In this case, Complainant alleges that she was subjected to a variety
of reproachful comments and actions from her supervisor. Assuming that
the alleged actions are true, we find that the actions are not severe
or pervasive enough to constitute a hostile work environment. Moreover,
the allegations do not involve loss or harm to the conditions, privileges,
or terms of Complainant’s employment. Consequently, we find that the
Agency properly dismissed Complainant’s complaint on the basis that
it failed to state a claim.
CONCLUSION
Accordingly, we AFFIRM the final decision of the Agency for the reasons
set forth in the decision.
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 1, 2011
Date
2
0120113132
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113132