0120100995
05-28-2010
Lisa A. Irby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Lisa A. Irby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120100995
Agency No. 1H381006309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 27, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
During the pertinent time, complainant worked as a Mail-Handler Equipment
Operator at a Memphis, Tennessee postal facility. Complainant filed
a formal EEO complaint alleging that the agency discriminated against
her on the bases of sex (female) and reprisal for prior protected EEO
activity when management, in July 2009, paged her on several occasions
and assigned her to different units and did not allow her to work her
bid assignment; paged her to the office for an investigative interview;
and, in October 2009, threatened her with discipline.
In its November 27 decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Specifically, the agency stated that complainant was not harmed by
its actions and its actions do not rise to the level of a hostile
work environment. The agency noted that the investigative interview
did not result in a concrete disciplinary action. The instant appeal
from complainant followed, in which complainant stated that management
harassed her and would not allow her to mediate her complaint. She added
that she worked for the agency for 18 years without discipline until
the aforementioned events.
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,
.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
(April 21, 1994).
Further, the Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Additionally, 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 actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
After careful review of the record, we find that complainant has not
alleged facts that, if proven true, would establish a harm or loss
with respect to a term, condition, or privilege of employment; that
the alleged events were reasonably likely to deter protected activity;
or that the actions complained of were sufficiently severe or pervasive
to rise to the level of a hostile work environment. Thus, we find that
the agency's dismissal of complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1) was appropriate.
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
May 28, 2010
__________________
Date
2
0120100995
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100995