Lisa A. Irby, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMay 28, 2010
0120100995 (E.E.O.C. May. 28, 2010)

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