Anne F. Burch, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 6, 2011
0120110827 (E.E.O.C. Dec. 6, 2011)

0120110827

12-06-2011

Anne F. Burch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.




Anne F. Burch,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120110827

Agency No. 4J-604-0109-10

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated October 18, 2010, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seq., Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. § 621 et seq.

BACKGROUND

Complainant was a Customer Service Supervisor at the Agency’s Aurora

Illinois Post Office in Aurora, Illinois. She resigned in September

2001. On September 25, 2010, she filed a formal complaint alleging

that the Agency subjected her to discrimination on the bases of age

(currently 50 years old), sex (female), color (White), disability and

reprisal (anonymously called the EEO office, and false allegations of

discrimination against her) 1 when:

1. she was placed on permanent disability when she was employed;

2. she was never provided a final notice from a mediator’s meeting

between herself, the Postmaster, the union steward, and an employee (she

suggests the employee was dissatisfied with result of mediation/EEO case,

and wrote she was called back to handle an arbitration meeting in 2002);

3. an employee has stalked and followed her;

4. no one notified her of any problems regarding her termination of Agency

benefits; her resignation retirement benefits balance was mailed to her,

and she had to pay it back;

5. Agency information was disclosed without her knowledge or consent,

i.e., prospective employers are implying that she has EEO complaints

and workers’ compensation claims, and such lawsuit information keeps

resurfacing; her benefit information, which included her dependants and

personal information was disclosed, which infiltrated into her medical

records and health benefits due to insurance claims being seen by family

members and co-workers; her retirement and insurance information was

disclosed recently and her family members viewed it in a lawsuit.

The Agency dismissed the complaint for failure to timely initiate EEO

counseling and failure to state a claim. On timeliness, the Agency

reasoned that Complainant resigned in 2001 and other than a reference to

an arbitration hearing in 2002, there were no other dates of reference

on her claims.

On failure to state a claim, the Agency reasoned in relevant part that

some of Complainant’s claims are vague and lack the specificity required

by 29 C.F.R. § 1614.106(c). The Agency also reasoned that some of the

claims were collateral attacks on the Office of Personnel Management

(OPM) and Office of Workers’ Compensation (OWCP) processes.

On appeal, Complainant makes no argument. In opposition to the appeal,

the Agency urges the Commission to affirm its dismissal.

ANALYSIS AND FINDINGS

An aggrieved person must seek EEO counseling within 45 days of the date of

the alleged discriminatory action, or in the case of a personnel action,

within 45 days of the effective date of the action. 29 C.F.R. §�

�1614.105(a)(1) & .107(a)(2). Complainant resigned in September 2001,

and initiated contact with an EEO counselor on June 22, 2010. While she

does not supply many dates, the nature of incidents 1, 2, and 4, indicate

they occurred years prior to her contacting an EEO counselor. Moreover,

she does not contend that claims 2 and 5 occurred within 45 calendar days

of her contact with an EEO counselor, even after the Agency dismissed

her entire complaint for failure to timely initiate EEO counseling.

The Agency’s dismissal of Complainant’s complaint for failure to

timely initiate EEO counseling is affirmed.

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. §§

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). We find that claim 2 fails

to state a claim because Complainant was not harmed by the Agency not

notifying her of the results of an employee’s grievance/EEO case.

To the extent that claim 3 regards an employee stalking Complainant

years after she ceased her employment, we find that this matter fails to

state a claim because it is insufficiently connected to her employment

to constitute a claim of employment discrimination. On the reprisal

claim, Complainant does not contend that Agency management asked the

employee to stalk her for her contact with an EEO counselor which was

anonymously made.

The portion of claim 4 about not being notified of problems with her

benefits and claim 5 fails to state a claim for being to vague to

investigate. Quesada v. Department of Homeland Security (Customs and

Border Protection Agency), EEOC Appeal No. 0120100816 (May 25, 2010).

The Agency’s dismissal 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 6, 2011

__________________

Date

1 On appeal, Complainant added the basis of age, and explained for

the first time her reprisal basis. Bases may be added on appeal.

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970).

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0120110827

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120110827