0120092752
12-07-2009
Sharon E. Pearman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Sharon E. Pearman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120092752
Agency No. 1C401002409
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 26, 2009, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed as a
General Clerk at the agency's Louisville, Kentucky facility. In an EEO
complaint dated May 9, 2009, complainant alleged that she was subjected
to discrimination on the basis of age (64) when her supervisor told
complainant that her job would be abolished. In its final decision, the
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The instant appeal followed.
The record gathered during EEO counseling indicates that on February 9,
2009, complainant's supervisor advised her that her position was being
considered for abolishment. Consequently, complainant argues, she was
forced to retire from the agency. However, the record in this matter
discloses that complainant's position was never in fact abolished and that
until she retired from her position, she had received no documentation
or other evidence indicating that her position was actually slated to
be abolished.
On appeal, complainant argues that her supervisor's statement regarding
her position was a lie designed to harass her and force her to retire.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that 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). Upon review, the Commission
finds that complainant has failed to allege that the agency subjected her
to any adverse action as a result of the alleged conduct in this matter.
Moreover, complainant has failed to identify any agency conduct so
severe or pervasive that it altered the conditions of her employment.
In that regard, the Commission finds that the agency's dismissal of
complainant's complaint in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1) was proper. Moreover, we also note that EEOC regulations
further permit dismissal of a claim that alleges that a proposal to take
a personnel action is discriminatory. See 29 C.F.R. � 1614.107(a)(5).
Accordingly, the agency's final decision dismissing complainant's
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
December 7, 2009
__________________
Date
2
0120092752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092752