Cheryl S. Walton, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionDec 5, 2012
0120122763 (E.E.O.C. Dec. 5, 2012)

0120122763

12-05-2012

Cheryl S. Walton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.


Cheryl S. Walton,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120122763

Agency No. 4E-970-0014-12

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated May 17, 2012, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales and Services Associate at the Agency's Midway Station facility in Portland, Oregon.

On April 27, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of disability (light duty following surgery) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On December 21, 2011, the Manager came from the Main Office Finance "to deal with [Complainant]". He then blocked Complainant's access. He then moved and retrieved another manager. Following the Manager's conversation, the Manager told Complainant that "you will shut up, sit there, and listen to me."

2. In February 2012, Complainant received an investigative interview regarding the event in December.

The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant failed to show that she was harmed by the alleged events. Further, the Agency noted that Complainant was not happy with the way the Manager spoke to her in December or that she received an investigative interview; however the events were not so severe to alter the conditions of her employment. Therefore, the Agency dismissed the compliant.

This appeal followed.

ANALYSIS AND FINDINGS

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 (Apr. 21, 1994).

In her compliant, Complainant alleged that the Manager spoke to her in a strong manner and blocked the doorway. Further, the event became the basis for an investigative interview in February 2012. Even if the events were proven to be true and viewed in a light most favorable to Complainant, the alleged events would not indicate that she has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915003 (May 20, 1998). Accordingly, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim was appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.

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

December 5, 2012

__________________

Date

2

0120122763

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120122763