0120113993
01-26-2012
Ella M. Petty, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Ella M. Petty,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113993
Agency No. 1E642001911
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Dismissal) dated July 25, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the Agency’s facility in Kansas City, Missouri.
On July 7, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American) and reprisal for prior protected EEO activity under
an EEO statute that was unspecified in the record when:
1. On February 25, 2011 Complainant was instructed to use the scanner
under the logon and password of another employee and after she refused
she was instructed to work in an area where she had previously experienced
a hostile work environment.
The Agency dismissed the claim for failure to state a claim, finding
that Complainant was not aggrieved.
CONTENTIONS ON APPEAL
On appeal, Complainant indicates that she wishes to amend her complaint
to include a claim of discrimination based on disability by being forced
to work outside her medical restrictions. The Agency requests that we
affirm its Dismissal.
ANALYSIS AND FINDINGS
Complainant provided a lengthy narrative describing how she was allegedly
harmed by the Agency by the events in question. From Complainant’s own
statements, however, it appears that she is alleging that the Management
Official who instructed Complainant to move her work area did so, not
out of retaliation for Complainant’s participation in the EEO process
or because of Complainant’s race, but because Complainant defied her
instruction to use a coworker’s logon ID and password.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because complainant failed to show that she was
subjected to unwelcome verbal or physical conduct involving her protected
classes, that the harassment complained of was based on her statutorily
protected classes, and that the harassment had the purpose or effect
of unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Nor has she shown she suffered 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 note, however, that Complainant on appeal has sought to amend her
complaint to include a claim of discrimination based on disability.
Specifically, Complainant appears to be arguing that being moved to
a new work area means that she is now being forced to work outside of
her medical restrictions. If Complainant wishes to raise such a claim,
she should contact an EEO Counselor, pursuant to 29 C.F.R. § 1614.105.
For purposes of timeliness, Complainant’s EEO Counselor contact shall
be deemed to have occurred on September 6, 2011, which is the date of
her amended appeal.
CONCLUSION
For the reasons provided above, we find that Complainant has failed to
state a claim and we AFFIRM the Agency’s Dismissal.
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
January 26, 2012
__________________
Date
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0120113993
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113993