0120080696
07-02-2009
Pamela G. Clapp, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela G. Clapp,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080696
Agency No. 4K-270-0030-06
DECISION
Complainant filed an appeal with the Commission from the agency's October
19, 2007 final decision. In her complaint, complainant alleges she was
subjected to discrimination on the bases of race (African-American)
and reprisal for prior protected EEO activity when on July 17, 2006,
complainant was issued a Letter of Warning (LOW) for Failure to Perform
Duties in a Safe Manner.
Initially, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(1), on the grounds complainant failed to state a claim.
Complainant appealed the agency's dismissal to the Commission. In Pamela
G. Clapp v. United States Postal Service, EEOC Appeal No. 0120071077
(March 9, 2007), request for reconsid. denied, EEOC Request No. 0520070413
(May 15, 2007), the Commission reversed the agency's decision dismissed
the subject claim.1
Following the Commission's remand, the agency conducted an investigation
of complainant's complaint. At the conclusion of the investigation,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Upon failing to request either a hearing or final agency
decision, the agency issued a final decision in accordance with 29
C.F.R. � 1614.110(b). The agency found complainant failed to prove that
she was subjected to discrimination as alleged.
Upon review, we find that the agency articulated a legitimate,
nondiscriminatory reason for the LOW. Supervisor, Customer Service
("Supervisor") stated that complainant was issued the LOW after
complainant incurred an injury while performing her job. Supervisor
determined that the injury was caused by complainant not working safely
when she failed to pay attention to her surroundings. Manager, Customer
Service testified that issuing a LOW for complainant's actions was in
accordance with the National Agreement between the USPS and the National
Association of Letter Carriers.
Complainant has failed to rebut the agency's legitimate, nondiscriminatory
reason for its actions. Furthermore, complainant has failed to show,
by a preponderance of the evidence, that the LOW was motivated by
discrimination on the basis of race or reprisal for prior protected
EEO activity.
The agency's decision finding no discrimination 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
July 2, 2009
__________________
Date
1 Complainant's complaint originally contained a second issue that: on
July 20, 2006, her station manager and supervisor attempted to controvert
her on-the-job injury claim filed with the Office of Workers' Compensation
Programs (OWCP). In EEOC Appeal No. 0120071077, the Commission affirmed
the agency's dismissal of the second issue for failure to state a claim.
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0120080696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080696