01A13913_r
12-18-2002
Wanda L. Zachary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wanda L. Zachary v. United States Postal Service
01A13913
December 18, 2002
.
Wanda L. Zachary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13913
Agency No. 4-H-390-0102-98
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her complaint of discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. In her complaint, complainant claims that she was discriminated
against in retaliation for prior EEO activity when:
On December 22, 1997, complainant was referred to the Employee Assistance
Program (EAP); and
On December 22, 1997, complainant was issued a letter of warning (LOW).
For the reasons described below, the Commission affirms the agency's
final decision.
The record reveals that complainant, a Distribution/Window Clerk,
Part-time Flexible (PTF), at the agency's Pass Christian, Mississippi
Post Office, filed the instant complaint with the agency on or about May
26, 1998.<1> On June 17, 1998, the agency issued a partial dismissal,
in which it
dismissed claim 1 for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), and accepted claim 2 for investigation. On May 10, 2000,
the agency received complainant's request for a hearing before an EEOC
Administrative Judge (AJ). Complainant withdrew her hearing request on
December 19, 2000, and the agency issued a final decision on May 7, 2001.
As the agency has issued its final decision, complainant's complaint,
in its entirety, is now ripe for adjudication.
In its June 17, 1998 partial dismissal, the agency dismissed claim 1,
regarding the EAP referral, for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). On appeal, complainant offers no new,
persuasive contentions regarding the EAP referral.
The Commission notes that there is no official record of the EAP referral
contained in the file; however, there is no dispute that complainant
was issued an EAP referral. As indicated in the December 22, 1997
memorandum contained in the file, complainant states that her supervisor
informed complainant that the EAP referral was not a disciplinary action.
Additionally, complainant does not claim that the EAP referral is part
of an overall claim of harassment.
The Commission finds that claim 1 fails to state a claim because
complainant failed to show that the EAP referral caused complainant to
suffer harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. �The Commission has ruled that
a referral to EAP which is not part of a harassment claim fails to state
a claim.� Hansen v. United States Postal Service, Request No. 05980707
(April 29, 1999). Therefore, we find that the agency properly dismissed
claim 1 for failure to state a claim.
The agency accepted claim 2 for investigation, and issued a final decision
finding that the preponderance of the evidence did not establish that
complainant was discriminated against when she was issued a LOW on
December 22, 1997. According to the agency, complainant was issued the
LOW for Failure to Follow Instructions and for Unsatisfactory Conduct.
The agency claims that complainant was charged with Failure to Follow
Instructions because she did not respond to her supervisor's direct
order to tell her supervisor what time she completed her tour of duty
on December 13, 1997. Complainant was charged with Unsatisfactory
Conduct because when complainant was questioned about the time that she
finished her tour of duty on December 13, 1997, complainant responded to
the supervisor rudely, pointed and shook her finger at the supervisor,
and twice poked the supervisor in the arm. In complainant's affidavit,
dated April 6, 2000, complainant denies that she touched the supervisor,
contending that the supervisor's jacket sleeve touched complainant's
finger when complainant was pointing to the timecard in her supervisor's
hand. Complainant also maintains that she did respond to the supervisor's
request about the time that she finished working on December 13, 1997.
Complainant responded that the supervisor could see what time complainant
clocked out by looking at the time card, but that complainant did not
know what time she finished her delivery to Gulfport. Complainant claims,
in a memorandum, dated December 20,1997, that the situation was provoked
by the supervisor.
Even assuming that complainant properly established a prima facie case
of discrimination on the basis of reprisal, we find that the agency met
its burden of production by articulating legitimate, nondiscriminatory
reasons for issuing complainant a LOW. Although the record shows
discrepant reports by complainant and her supervisor as to the manner
in which some of the events leading to the LOW transpired, complainant
has failed to show by a preponderance of the evidence that the agency's
actions were motivated by prohibited discrimination.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
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 18, 2002
__________________
Date 1There is no postmark or certified receipt
contained in the record indicating the date on which complainant's
complaint was filed. Her complaint is dated May 24, 1998, and complainant
does not dispute the May 26, 1998 filing date reported by the agency,
on appeal or elsewhere in the record. Therefore, the Commission accepts
May 26, 1998 as the date on which complainant's complaint was filed.