05A11052
12-21-2001
Maria O. Chavez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Maria O. Chavez v. United States Postal Service
05A11052
December 21, 2001
.
Maria O. Chavez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 05A11052
Appeal No. 01A12435
Agency No. 1G-782-0007-00
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Maria
O. Chavez v. United States Postal Service, EEOC Appeal No. 01A12435
(July 25, 2001). EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 25, 2001, 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 (prior EEO activity) when: 1)
complainant was given a discussion for going to the restroom without
permission of her supervisor; 2) complainant's supervisor gave her
a hard time before letting her see a shop steward and inquired if she
had threatened someone; and 3) complainant was referred to the Employee
Assistance Program (EAP). According to the agency, complainant failed to
show how the alleged events resulted in a harm or loss regarding a term,
condition, or privilege of her employment and therefore complainant did
not establish that she was an �aggrieved employee.� The agency dismissed
the claim pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim.
Complainant filed an appeal with the Commission, which affirmed the
agency's dismissal for failure to state a claim. In her Request to
Reconsider (RTR), complainant states that the issues raised in her
complaint are subjects of agency policy on treating others with dignity
and respect, and that harassment and threats are not tolerated. She also
states that the agency has the responsibility to appoint management
personnel that are skilled in dealing with people. Complainant expands on
some of the issues raised in her complaint stating that the supervisor's
actions may be due to the fact that she is a woman and over 50, and
that the supervisor's statement was a threat and not an inquiry.
Complainant also raises possible violations of family and bereavement
leave laws and policies.<1>
Our prior decision determined that the described incidents were
petty slights and trivial annoyances and therefore not actionable.
The Commission has found that petty slights and trivial annoyances are not
actionable, as they are not likely to deter protected activity. See EEOC
Compliance Manual on Retaliation at 8-13 through 8-15.(May 20, 1998).
A request for review is not a second opportunity for appeal, and the
Commission's scope of review on a RTR is narrow. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990). In order to
merit the reconsideration of a prior decision, the requesting party must
submit written argument that tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. Complainant has not offered
sufficient argument demonstrating a clearly erroneous interpretation
of material fact or law; or that the decision will have a substantial
impact on the policies, practices, or operations of the agency. See 29
C.F.R. � 1614.405(b). Further, based on a review of the record, we find
that the previous decision properly affirmed the agency's decision to
dismiss the complaint for failure to state a claim.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A12435 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_December 21, 2001
Date
1 To the extent that complainant is raising new matters that occurred
after the filing of the complaint addressed in this decision, complainant
is advised that if she wishes to pursue these claims as a new complaint,
she must initiate contact with an EEO Counselor within 15 days after
receipt of this decision, and if she does so, the agency shall consider
the date complainant filed her request in which she raised these claims to
be the date of the initial EEO contact, unless she previously contacted a
counselor regarding these matters, in which case the earlier date would
serve as the EEO counselor contact date. Cf. Qatsha v. Department of
the Navy, EEOC Request No. 05970201 (January 16, 1998).