0120092657
12-08-2009
Amy L. Sutcliffe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amy L. Sutcliffe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092657
Agency No. 4J460006209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 14, 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 her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under a statute
that was unspecified in the record when:
1. On September 8, 2008, complainant was given a letter of warning (LOW)
for not properly documenting her work hours; and
2. On March 17, 2009, complainant was instructed to move ADVOS [sic].
The agency dismissed claim 1 for stating the same claim as a
previously-filed claim and claim 2 for failure to state a claim.
The agency submitted copies of an earlier complaint filed on September
13, 2008 under Agency No. 4J-460-0103-08 wherein complainant claimed
discrimination based on reprisal when, on September 8, 2008, she was
given a LOW. Complainant contends that she recently found that another
coworker did not receive a LOW even though he did not properly document
his work hours. However, as the agency noted in the FAD, the Commission
has held that discovery of a new comparison employee does not give rise
to a new claim. See Doleshal v. Department of Health and Human Services,
EEOC Appeal No. 01A40020 (July 29, 2004); Daniels v. Unites States Postal
Service, EEOC Appeal No. 01920439 (February 23, 1992); Adams v. Unites
States Postal Service, EEOC Appeal No. 01005341 (January 12, 2001),
and Wagner v. Unites States Postal Service, EEOC Appeal No. 01A22766
(July 23, 2002).
As regards claim 2, we find that complainant fails to state a claim of
reprisal because complainant has not shown how being asked to move ADVOS
constitutes an action that is reasonably likely to deter complainant or
others from engaging in protected EEO activity. Accordingly, we affirm
the FAD.
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
December 8, 2009
__________________
Date
2
0120092657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092657