0120101043
06-08-2010
Delores Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Delores Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101043
Agency No. 4H330029309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 30, 2009, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior protected EEO activity when on August
11, 2009, her delivery route was adjusted without any consideration of
her medical restrictions.
Complainant contended that the agency, falsely claiming it did not
have her medical restrictions on file, adjusted her route by adding
some walking. With her EEO papers, complainant submitted a slip by
her physician dated September 22, 2008, indicating that she had a right
shoulder impingement and was restricted from using a satchel [to carry
mail over her shoulder]. The EEO counselor contacted the responsible
management official, the manager of customer services, who stated that
prior to the implementation of the route adjustment a union steward
approached him advising of complainant's no mail satchel restriction.
The manager advised that complainant would be given a push cart, so not
being able use a satchel was not a problem.
In response to the manager's representation, complainant contended that
the push cart came up after she threatened to file an EEO case if she
was not allowed an alternative way to deliver the mail.
The agency dismissed the complaint for failure to state a claim.
It reasoned that complainant was not harmed. On appeal, complainant
contends that the manager's statement about proposing a push cart as
a resolution misrepresented his plan to adjust her route beyond her
restrictions, which was deterred by her EEO case.
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).
Complainant's complaint fails to state a claim. She does not contend
that the route adjustment violated her medical restrictions with the use
of a push cart. Rather, she contends that the agency did not consider
her medical restriction when planning route adjustments, and only raised
the push cart when she threatened to file an EEO claim. But complainant
was not harmed.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. We find
that the agency allegedly failing to consider complainant's medical
restrictions when planning route adjustments, in light of what followed,
would not reasonably likely deter EEO activity.
The agency's final decision 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 8, 2010
__________________
Date
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0120101043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101043