0120101598
08-03-2010
Carol J. Armstrong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Carol J. Armstrong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120101598
Agency No. 4B060013509
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 19, 2010, 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.
BACKGROUND
On August 4, 2009, Complainant incurred an injury while on duty when she was viciously attacked by a dog while delivering the mail. Complainant feels that the address should have had a hazard warning card/dog warning card in place because there had been a previous incident with the same dog, but the address did not have any warning in place. In her complaint, Complainant alleged that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when:
1. Following Complainant's injury, Complainant's supervisor denied her the right to file an Unsafe Practice/Hazard form.
The Agency dismissed the claim for failure to state a claim on the grounds that Complainant was not aggrieved by the Agency's action because she incurred no harm or loss from the Agency's action. On appeal, complainant says that she is "appealing an unsafe work environment because of the employer's knowledge of prior injury-on-the-job and discriminated against because I wanted to report it as such and release of private photos of my injuries by management to other employees." Complainant's Appeal Brief. The Agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
We note initially that Complainant is claiming that the Agency's action is in retaliation for reporting a sexual harassment complaint against a co-worker. The Agency found that Complainant's allegations failed to state a claim because she incurred no harm or loss from the alleged action. We note, however, that this is the incorrect standard for claims of retaliation. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Thus the issue is not whether Complainant incurred a harm or loss but whether the agency's action is reasonably likely to deter Complainant or others from engaging in protected EEO activity. Even under this standard, however, we find that Complainant fails to state a claim. Management's refusal to allow Complainant to file an Unsafe Practice/Hazard form does not affect Complainant since Complainant is already aware of the danger at the address in question. Instead, Complainant's intent in filing the form appears to be to bring attention to the dangerous dog at the address in question, in other words, to warn others and to prompt management to act. While Complainant is to be commended for wanting to warn others, Management's refusal to let her do so is not an action that is reasonably likely to deter Complainant or others from engaging in protected EEO activity. We therefore find that her claim fails to state a claim of reprisal.
With regards to Complainant's reference on appeal to Management's divulgence of her medical information, we note that while this claim was mentioned in her Informal complaint, it was not mentioned in her Formal Complaint or in the FAD, and therefore is not before us on appeal. For the above reasons, we AFFIRM the FAD.
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
August 3, 2010
__________________
Date
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0120101598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101598