0120112345
08-19-2011
Tina M. Perez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Tina M. Perez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120112345
Agency No. 1E642000411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 24, 2011, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Parcel Post Machine Distribution Clerk at the Agency’s Kansas
City NDC facility in Kansas City, Kansas.
On February 11, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(Caucasian), sex (female), color (Not Specified), and age (over 40)
when, on October 16, 2010, she was asked to perform the duties of a dock
clerk which were outside her medical restrictions and thereafter she was
asked to provide updated medical documentation. After Complainant told
a manager that she had a medical condition that kept her from working
on the dock, she was not required to work on the dock. Complainant was
not disciplined.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. The instant appeal
followed.
ANALYSIS AND FINDINGS
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). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations, the
agency shall dismiss the complaint for failure to state a claim pursuant
to 29 C.F.R. § 1614.107(a)(1). As Complainant was not actually forced
to work on the dock once she disclosed her medical restrictions, she
has not shown how she was aggrieved by the Agency’s actions. Further,
Complainant has not explained how she was harmed by being asked to provide
update medical information under the circumstances presented herein.
Accordingly, 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
August 19, 2011
__________________
Date
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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