01a55304
12-20-2005
Ruby J. Todd, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruby J. Todd v. United States Postal Service
01A55304
December 20, 2005
.
Ruby J. Todd,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55304
Agency No. 1J-603-003-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated March 9, 2005, complainant alleged
that she was subjected to discrimination on the bases of sex (female)
and disability<1> (epicondylitis, and lumbosacral strain) when:
On October 14, 2004, a Supervisor (RMO1: male, no known disability)
issued complainant an Emergency Placement in an Off Duty Status: and
On November 5, 2004, RMO1 denied complainant a reasonable accommodation
of her disability when he told her to work on the Automated Flat Sorting
Machine (AFSM) 100 in contradiction of her medical restrictions.
Following an investigation, the agency issued a Final Agency Decision
(FAD) dismissing the complaint for failure to state a claim and
for mootness. The agency noted that the emergency placement in off
duty status was immediately rescinded, and that, while RMO1 did order
complainant to work on the AFSM 100, complainant discussed the matter
with her own supervisor (RMO2: male, no known disability) and was not
in fact required to work on the machine. On appeal, complainant argues
that the complaint should not have been dismissed for mootness because
complainant argues that she was not abusing the EEO process.
Regarding claim 1, while the record reveals that the emergency placement
in off duty status was rescinded the following day and complainant
was ordered to return to work on October 20, 2004 see EEO Counselor's
Report, p. 16, the Commission initially determines that the agency
improperly dismissed complainant's complaint as moot because the agency
did not address complainant's claim for damages. See generally Cogen
v. United States Postal Service, EEOC Appeal No. 01A34530 (March 31,
2004); Allen v. United States Postal Service, EEOC Request No. 05970672
(June 12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 3, 1993).
We note, however, that a fair reading of complainant's allegations
indicates that complainant does not state a claim of discrimination.
In this regard it is clear from complainant's statements to the EEO
Counselor that the matter involved a dispute between complainant and RMO1
regarding complainant's Union activities. See EEO Counselor's Report,
pp. 28-34. Complainant indicates that RMO1 objected to complainant
conducting Union activities in a work-area under his supervision and
issued the emergency placement order in an effort to get complainant
to cease such activities. Id. As such, complainant does not state a
claim of discrimination under 29 C.F.R. � 1614.103(a).
Regarding claim 2, a review of the record shows that complainant admits
that despite RMO1's order, she was not required to work on the AFSM 100.
See Report of Investigation (ROI), Affidavit A. p. 18. Accordingly,
the Commission finds that claim 2 fails to state a claim under the EEOC
regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Nor do we find complainant
established a claim of hostile work environment as the single act
complained of is not severe or pervasive enough to constitute harassment.
See generally Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998);
See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752
(1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 20, 2005
__________________
Date
1For purposes of this decision the Commission assumes without
finding that complainant is an individual with a disability.
29 C.F.R. � 1630.2(g)(1).