0120110768
02-10-2012
Sherri A. Johns, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Sherri A. Johns,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120110768
Agency No. DECA001812010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 21, 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Store Worker at the Agency’s Tinker Air Force Base (AFB) Commissary
in Oklahoma.
On October 2, 2010, Complainant filed a formal complaint, which the
Agency characterized as claims that she was subjected to discrimination
on the bases of sex (female) and disability when: (1) on June 26,
2010, management ignored her medical restrictions causing Complainant
further injury; and (2) on July 28, 2010, management issued Complainant
a “write-up” which was placed in her supervisory work folder.
The Agency dismissed claim 1 for untimely EEO counselor contact and
claim 2 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, Complainant argues that the Agency erred in
considering her complaint to contain two separate claims. Instead, she
asserts that her complaint contained a single claim as July 28, 2010
“write-up” was about the June 26, 2010 incident where Complainant
claims she was required to work outside her medical restrictions, causing
her further injury. In her appeal statement, Complainant asserts that
the focus of her complaint is the write-up itself and the June incident
is background evidence. Complainant argues that she was harmed by the
write-up because it was a prelude to disciplinary action and could also
be used to dispute a future injury compensation claim by Complainant.
The record developed during pre-complaint counseling contains a copy
of the July 28, 2010 write-up entitled “Discussion of Incidence or
Delinquency.” The write-up indicates Complainant injured her shoulder
on-the-job in May 2010, which limited her ability to lift. It goes on to
asserts that on June 26, 2010, Complainant was told to work at the self
check-out area, but insisted on working the regular cash register. As
a result, after four hours at the register, Complainant indicated her
shoulder was hurting, used sick leave, and left for the day. Complainant
was away from work for another 24 days as a result of this injury.
A fair reading of the write-up shows that it is a summary of
management’s view of what occurred on June 26, 2010. The write-up does
not appear to be disciplinary in nature, and Complainant does not assert
she was disciplined. Complainant appears concerned that the write-up
will be used against her with respect to any worker’s compensation
claims. However, this claim is highly speculative and not sufficient to
establish a present harm.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because Complainant failed to allege 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
February 10, 2012
__________________
Date
2
0120110768
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110768