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.
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0120090414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090414