0120092593
03-01-2011
Beverly J. Doerr, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Beverly J. Doerr,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092593
Agency No. 4H-320-0008-09
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. For the reasons set forth, we
AFFIRM the Agency's decision, dismissing the complaint.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Sales Associate at the Agency's Nobles Station in Pensacola,
Florida. EEO Counselor's Report at 1. Complainant sought EEO counseling
and subsequently filed a formal complaint. Complainant alleged that
she was subjected to discrimination on the basis of age (over 40) when:
1. In September 2008, another employee at the Nobles Station was catered
to.
2. On November 4, 2008, the employee was assigned back to the Downtown
Station and Complainant was not reassigned back to the Downtown Station.
On February 17, 2009, the Agency issued a decision dismissing claim 1
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Additionally, the Agency dismissed claim 2 pursuant to 29 C.F.R. �
1614.107(a)(1), for stating the same claim that is pending before or has
been decided by the agency or the Commission. Thereafter, Complainant
filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterated her disappointment with not being
reassigned to the Downtown Station. Complainant's Appeal at 1
In response to Complainant's appeal, the Agency stated that Complainant
has offered no argument or substantive evidence to cause the Commission
to disturb its Dismissal of the Formal EEO Complaint. The Agency urged the
Commission to sustain its final Agency decision. Agency's Response at 1.
ANALYSIS AND FINDINGS
Claim 1
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We concur with the Agency and find that Complainant is not aggrieved as
a result of the incident alleged in claim 1. Nothing in the record
indicates that Complainant suffered any harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. Complainant failed to explain how this incident rendered
her aggrieved. Specifically, there is no evidence that any management
official took any action against her affecting a term, condition or
privilege of her employment. Moreover, the Commission does not find
that Complainant's claim is sufficiently so severe as to state a claim
of harassment.
Claim 2
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
The record indicates that Complainant filed another complaint, Agency
No. 4H-320-0128-08, alleging, in pertinent part, that in June 2008, an
employee was assigned back to the Downtown Station while Complainant was
not reassigned back to the Downtown Station. The record reflects that
Complainant withdrew EEO Agency No. 4H-320-0128-08 on August 1, 2008.
The Commission finds that the instant complaint states the same claim
as raised by Complainant in Agency No. 4H-320-0128-08. Both complaints
ultimately concern an employee being assigned back to the Downtown
Station while Complainant was not reassigned to the Downtown Station.
Although the incident dates are different, we find that the instant
complaint is simply purported subsequent evidence of discrimination of
the prior claim.
Therefore, we find that the instant complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is
AFFIRMED.
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
March 1, 2011
__________________
Date
2
0120092593
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013