0120112200
12-01-2011
Juanita M. Burnett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Juanita M. Burnett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120112200
Agency No. 4K-290-0003-11
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's final action, 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
At the time of events giving rise to this complaint, Complainant worked as
a Supervisor, Customer Service, EAS-17, at the Agency’s work facility
in Conway, South Carolina. On December 31, 2010, Complainant filed
a formal complaint wherein she claimed that the Agency discriminated
against her on the bases of sex (female) and age (53) when:
1. On September 20, 2010, after a discussion regarding the unbalanced
distribution of work assignments, the Postmaster did not change the
workload.
2. On an unspecified date, Complainant was not paid correctly.
The Agency issued a final action wherein it dismissed the complaint on
the grounds of failure to state a claim. With respect to claim (1), the
Agency determined that Complainant was not subject to any adverse action
or denied any entitlement in relation to a term, condition, or privilege
of her employment. The Agency reasoned that directing employees in the
performance of their duties and ensuring the efficiency of the operation
is a matter that is within the realm of managerial prerogative and
authority. As for claim (2), the Agency determined that a pay adjustment
dated November 15, 2010, paid Complainant for the referenced time.
On appeal, Complainant contends that the workload is not being equitably
distributed between her and the male supervisor who is under 40 years
of age. Complainant maintains that the male supervisor has only 20-25%
of her workload.
In response, the Agency asserts that Complainant is not aggrieved.
The Agency reiterates that directing employees in the performance of their
duties and ensuring the efficiency of the operation is within the realm
of managerial prerogative and authority. Further, the Agency maintains
that the totality of the circumstances and the actions complained of
are neither sufficiently severe nor pervasive to create a discriminatory
hostile work environment. With regard to claim (2), the Agency asserts
that a pay adjustment dated November 15, 2010, paid Complainant for the
referenced time.
ANALYSIS AND FINDINGS
With regard to the alleged imbalanced supervisory workload referenced in
claim (1), the Commission finds that it 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).
As for claim (2), the record reflects that the Agency issued a pay
adjustment dated November 15, 2010, to Complainant for an additional 2.50
hours of extra straight time and an additional 2.50 work hours. Complaint
File at 28. Complainant has not claimed that she is due a specific higher
amount of adjustment nor has she claimed compensatory damages. We find
that this pay adjustment has rendered claim (2) moot as it completely
and irrecovably eradicated the effects of the alleged violation and it
can be said with assurance that there is no reasonable expectation that
the alleged violation will recur. Thus, claim (2) is dismissed on the
grounds of mootness pursuant to 29 C.F.R. § 1614.107(a)(5).
CONCLUSION
The Agency’s dismissal of the 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
December 1, 2011
__________________
Date
2
0120112200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120112200