0120102191
08-12-2010
Petra Rezac, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Petra Rezac,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102191
Agency No. 1E982000710
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 15, 2010, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
In a complaint dated February 18, 2010, Complainant, a Mail Handler at the Agency's Seattle, Washington NDC, alleged that the Agency subjected her to discrimination on the bases of race (White), national origin (German), sex (female), age (48), and reprisal for prior protected EEO activity [under Title VII] when:
(1) on November 12, 2009, she was threatened with being made to use equipment that previously caused her pain and injury; and
(2) on February 6, 2010, she was approached about being placed in the rotation to use the same equipment.
AGENCY DISMISSAL
The Agency dismissed the complaint, noting that the record establishes that Complainant was merely spoken to by management on two separate occasions in an attempt to obtain information. She was not forced to use the equipment at issue. The Agency noted that she was not reassigned, nor reduced in level, grade, or pay. The Agency found that there is no evidence in the record to show that Complainant was denied any entitlement in relation to a term, condition or privilege of employment.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that her manager is still treating her differently than his other equipment operators even though he claims otherwise. She states that her manager's actions were never intended to get all equipment operators trained on all equipment since he still has not done this.
Complainant asserts that since she initiated her complaint, she has been forced to train on the equipment that previously caused her injury. She asserts that the Postal Service should have assigned her case to an EEO Investigator who could have verified her claims by reviewing training records for all equipment operators at the Seattle NDC. She states that their decision to hide this information is further evidence of their continuing desire to discriminate against her.
In addition, she states that the Postal Service denied her access to mediation.1 She generally states that the Postal Service also failed to consider prior EEO activities as well as the EEO settlements that were incorporated into grievance settlements. The Agency asks the Commission to affirm the Dismissal.
ANALYSIS AND FINDINGS
We note initially, that the instant complaint does not specifically allege a breach of settlement. Moreover, this complaint does not allege disability-based discrimination.2 To the extent that Complainant alleges that the November 12, 2009 and February 6, 2010 incidents constitute discriminatory harassment, 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
________8/12/10__________
Date
1 We note that Commission policy states that, "[n]othing said or done during attempts to resolve [a] complaint through ADR can be made the subject of an EEO complaint." EEOC Management Directive 110 for 29 C.F.R. Part 1614 (EEO-MD-110), 3-3 (November 9, 1999). Also, "an Agency decision not to engage in ADR, or not to make ADR available for a particular case . . . cannot be made the subject of an EEO complaint." Id.
2 There is no evidence that Complainant amended the complaint before the Agency issued the Dismissal, to allege that she had in fact been ultimately forced to use equipment that she was not supposed to use. Accordingly, we cannot consider this new claim at this juncture. However, Complainant is advised that any new incidents of discrimination which arose after the formal complaint was filed may be brought to the attention of an EEO counselor.
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0120102191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102191