0120070088
05-06-2009
Beverly A. Pearson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly A. Pearson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070088
Agency No. 4G-770-0274-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 15, 2006, dismissing her complaint of unlawful
employment discrimination. Complainant alleged that she was subjected
to discrimination on the bases of disability (both knees) and in reprisal
for prior protected EEO activity when:
1. On May 1, 2006, complainant was denied overtime on Route 2121.
2. On May 15, 2006, the station manager had a union Step meeting with
the union steward for male employees' grievances and did not include
complainant's grievance.
3. On May 15, 2006, complainant was not given official time by management
upon her request to complete an affidavit in a timely manner.
4. On June 13, 2006, complainant discovered that she had not been paid
her interest according to a grievance settlement.
5. On June 13, 2006, complainant's supervisor attempted to question her
without complainant having representation.
6. On June 13, 2006, complainant submitted an Item-13 to file a grievance
for missing paperwork and was not allowed to see the union steward.
7. On June 13, 2006, complainant's personal bag came up missing from
her supervisor's desk.
8. On June 14, 2006, management walked over by complainant daily and
did not speak.
9. On June 16, 2006, complainant was refused union representation to
file missing documents.
The agency dismissed the claims on numerous grounds.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory event in claim
1 occurred on May 1, 2006. We concur with the agency and find that
complainant did not initiate contact with an EEO Counselor until June 16,
2006, which is one day beyond the 45-day limitation period. Complainant
has presented no persuasive arguments or evidence on appeal warranting
an extension of the time limit for initiating EEO Counselor contact.
Claims 5 & 8
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 concur with the agency and find that complainant is not aggrieved
as a result of the acts alleged in claims 5 and 8. Nothing in the
record indicates that complainant suffered any harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. Complainant failed to explain how these incidents rendered
her aggrieved. Specifically, there is no evidence that any management
official took any action against her affecting a term, condition or
privilege of her employment.
Claim 7
Regarding claim 7, complainant stated that a bag, which contained personal
papers relative to the prior and instant EEO cases, was missing from her
supervisor's desk. Complainant argued that the protection from theft is
a right under the union contract and the right to have papers safely at
work for EEO pursuit is a term of the union contract as it is a part
of federal law. Management argued that they addressed the situation
by making inquiries about complainant's personal bag. We find that
complainant failed to show that she was harmed or that a reasonable person
would be deterred from using the EEO process under the circumstances.
Therefore, we find that claim 7 was properly dismissed for failure to
state a claim.
Claims 2, 4, 6 & 9
As to claims 2, 4, 6, and 9, we find that these claims are outside the
purview of the EEO process and that the agency properly dismissed these
claims for failure to state a claim.
Claim 3
We note initially that the Commission has stated that an allegation
pertaining to the denial of official time states a separately-processable
claim alleging a violation of the Commission's regulations, without
requiring a determination of whether the action was motivated by
discrimination. See Edwards v. U.S. Postal Service, EEOC Request
No. 05960179 (December 23, 1996). An employee of the agency shall have
a reasonable amount of official time to respond to the agency and EEOC
requests for information. 29 C.F.R. �1614.605(b). Thus, contrary to
the agency's final decision, we find that claim 3 does state a claim. We
further find that there is sufficient information in the record to reach
a decision on the merits of claim 3. Although we are deciding on merits,
we are not examining whether discrimination occurred. Complainant stated
that she was not given official time by management upon her request to
complete her affidavit in a timely manner. The Station Manager asserted
that complainant was given a reasonable amount of time to complete
her affidavit. The Acting Supervisor of Customer Service claimed that
complainant was given official time to complete her affidavit in a timely
manner. Complainant does not claim and the record does not show that
complainant was denied a specific amount of requested official time on
any particular day; therefore, we find that complainant failed to show
that she was denied a reasonable amount of official time to complete
her affidavit.
The agency's decision dismissing claims 1, 2, 4, 5, 6, 7, 8 and 9, and
the agency's final decision as to claim 3 are AFFIRMED for the reasons
set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 6, 2009
__________________
Date
2
0120070088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013