Chavez v. United States Postal Service

Maria O. Chavez v. United States Postal Service
01A12435
July 25, 2001

.



Maria O. Chavez,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 01A12435

Agency No. 1G-782-0007-00

DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 25, 2001, 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. In her complaint, complainant alleged that she was subjected to
discrimination on the basis of reprisal (prior EEO activity) when: 1)
complainant was given a discussion for going to the restroom without
permission of her supervisor; 2) complainant's  supervisor gave her
a hard time before letting her see a shop steward and inquired if she
had threatened someone; and 3) complainant was referred to the Employee
Assistance Program (EAP).  The agency dismissed the claim pursuant to
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

In complainant's complaint, she states, concerning the actions of
her supervisor, "It literally makes me sick.”  On appeal, complainant
explains this to mean that her alleged injuries included “great distress
that manifested itself in [sic] an upset stomach, mental discomfort and
emotional discomfort.”
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. The
Commission has found that petty slights and trivial annoyances are not
actionable, as they are not likely to deter protected activity, but that
more significant retaliatory treatment could be challenged regardless
of the level of harm.  See EEOC Compliance Manual on Retaliation at
8-13 through 8-15.(May 20, 1998); Smith v. Secretary of Navy, 659 F.2d
1113, 1120 (D.C. Cir. 1981) ("the questions of statutory violation and
appropriate statutory remedy are conceptually distinct. An illegal act
of discrimination -- whether based on race or some other factor such as
a motive of reprisal -- is a wrong in itself under Title VII, regardless
of whether that wrong would warrant an award of [damages]").

The Commission's position is based on statutory language and policy
considerations.  The anti-retaliation provisions are exceptionally broad.
They make it unlawful "to discriminate" against an individual because
of his or her protected activity.  This is in contrast to the general
anti discrimination provisions which make it unlawful to discriminate
with respect to an individual's "terms, conditions, or privileges of
employment."  The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity.  They do not restrict
the actions that can be challenged to those that effect the terms and
conditions of employment.  Thus, a violation will be found if an employer
retaliates against a worker for engaging in protected activity through
threats, harassment in or out of the workplace, or any other adverse
treatment that is reasonably likely to deter protected activity by that
individual or other employees.  Id.

After a careful review of the record, we find that the incidents described
by the complainant were petty slights and trivial annoyances and are
therefore not actionable.  Accordingly, the agency's decision to dismiss
the complaint for failure to state a claim was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19848,
Washington, D.C. 20036.  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 (S0900)

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 (Z1199)

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 that the Court appoint
an attorney to represent you and that the Court 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 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 25, 2001
Date