Barbara J. Norcross, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 11, 2010
0120090414 (E.E.O.C. Jun. 11, 2010)

0120090414

06-11-2010

Barbara J. Norcross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Barbara J. Norcross,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120090414

Agency No. 4J-600-0100-08

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated September 22, 2008, 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.

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.

ISSUE PRESENTED

The issue presented is whether Complainant's complaint states a claim

of discrimination.

BACKGROUND

In a complaint dated September 4, 2008, Complainant, a Rural Carrier at

the Agency's Libertyville, Illinois Post Office, alleged that she was

subjected to discrimination on the basis of sex (female) when she was

made aware of a 2006 count for a male rural carrier that was excessive.

Complainant stated that on April 23, 2008, she became aware that a male

rural carrier's mail count was "off the charts." Complainant asked the

Postmaster to readjust the coworker's route because anytime her route

was large it was automatically readjusted. She maintains that she was

concerned about the route because she believed that she may someday have

this route. Complainant explains that, had the coworker's route been

readjusted, she could have been given additional hours and she possibly

would not have had to work on Saturdays.

The Agency determined that Complainant failed to show how she was

aggrieved and dismissed the complaint for failure to state a claim.

The Agency also alleged that Complainant failed to contact an EEO

Counselor in a timely manner. Specifically, the Agency maintained that

the coworker's mail count was established in 2006, but Complainant did

not contact an EEO Counselor until April 2008, which was approximately

a year and a half after she should have had a reasonable suspicion of

discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that "this is nothing more than protecting

a male carrier's route from what might happen in years to come at the

expense of a female carrier." Complainant maintains that management's

response for why the adjustment was not immediately made was that the

male coworker had gotten used to the money. Complainant argues that she

could have used some of that money and indicates that had the route been

adjusted by just an hour she might have received extra pay or might not

have had to work on Saturdays. Complainant indicates that she contacted

the union about this matter and management assured the union that the

route would be adjusted. However contrary to management's promises,

management delayed the count and put it off until the count was within

acceptable limits. Complainant also contends that the male coworker

routinely failed to sign in accurately and it was because of this

deception that the coworker was made to look like a stellar employee

with regard to the delivery of his route.

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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Based on a review of the record, the Commission finds that the complaint

fails to state a claim under the EEOC regulations, because Complainant

has failed to show that she suffered a 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). We find that Complainant's interest in someday

having the route, possibly making more money and possibly working less

is speculative, in that no evidence has been presented that the overage

from the coworker's count would have gone to Complainant. Therefore,

we find that Complainant has not demonstrated that she was actually

harmed by the Agency's actions.1

CONCLUSION

Therefore, the Commission finds that the Agency correctly found that this

complaint did not state a claim. Accordingly, the Agency's final decision

dismissing Complainant's complaint pursuant to 29 C.F.R. 1614.107 (a)

(1) for failure to state a claim is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

June 11, 2010

Date

1 In view of our disposition of the appeal, we need not address the

question of whether complainant's EEO Counselor contact was untimely.

??

??

??

??

2

0120090414

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120090414