0120070242
03-19-2009
Jo Ann Blake, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jo Ann Blake,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070242
Agency No. 4E-980-0098-06
DECISION
The record indicates that complainant filed her complaint dated August 4,
2006, alleging discrimination based on disability (unspecified) and in
reprisal for prior EEO activity when:
(1) On April 28, 2006, and 40 days prior, she was required to punch a
time-card while working at the Midtown Station;
(2) On May 24, 2006, she received a letter from the injury compensation
office, received from the OWCP (Office of Workers' Compensation Program),
offering a position at the Milton Station with less responsibility and she
was being forced to accept the Milton position or lose all compensation
benefits;
(3) On June 21, 2006, she was removed from the position of Postmaster of
Seahurst, and she was pulled from a higher level detail in maintenance
and put in a clerk position (date unspecified); and,
(4) On June 26, 2006, she was sent to the Milton Post Office; forced
to have a 44 mile round trip commute with the help of OWCP; the duties
of her Milton Post Office position and commute are causing her to have
spasmodic symptoms in her back.
On August 29, 2006, the agency issued its decision dismissing the
complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). In claim (1), complainant claimed that she was treated
differently when 204-Bs/nonpromoted EAS employees were not required
to punch a time card to work in the building, whereas she was required
to do so. We find that complainant was not aggrieved with regard to a
condition or privilege of her employment as a result of this treatment.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Furthermore, the incident in claim 1, even if combined with
the remainder of the complaint, is insufficiently severe to state a claim
of harassment. Thus, we find that the agency properly dismissed claim
(1) for failure to state a claim.
With regard to claims (2), (3), and (4), the agency indicated that
complainant was previously at the agency's Seahurst Station as a
Postmaster. Due to her injury to her back at that station and her
requested accommodation, the agency stated that complainant was given a
temporary modified work assignment to the EAS-17 Maintenance supervisor
position at the Seattle P&DC on August 31, 2005, until a permanent
modified job assignment was made to her by OWCP. When this temporary
detail was up, about 93 days later, in December 2005, complainant was
moved to Midtown Station as a lobby director. Ultimately, on March 14,
2006, OWCP approved a permanent EAS modified assignment at the Milton
Station, for which complainant signed. The record indicates that claims
(2), (3), and (4) involved OWCP's subsequent letters dated May 22 and
June 23, 2004, concerning the March 14, 2006 OWCP decision. We find that
the alleged matters amount to a collateral attack on an OWCP decision
assigning complainant to the permanent position at the Milton Station.
Thus, we find that the claims (2), (3), and (4) do not state a claim.
Accordingly, the agency's dismissal of the complaint 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
3/19/09
__________________
Date
2
0120070242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013