01a35217_r
02-10-2004
Cecilia M.P. Baza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cecilia M.P. Baza v. United States Postal Service
01A35217
February 10, 2004
.
Cecilia M.P. Baza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35217
Agency No. 1G-871-0028-03
DECISION
Complainant filed the instant appeal from the agency's decision dated
August 14, 2003, dismissing complainant's complaint for failure to
state a claim and/or due to untimely EEO Counselor contact pursuant to
29 C.F.R. �� 1614.107(a)(1) and (2). The agency defined the complaint
as alleging that complainant was discriminated against when:
On May 9, 2002, a coworker informed her that the 204-B warned her about
talking to her;
On May 29, 2002, a coworker gave her the heads-up that the supervisors
had a problem with her and another coworker talking to each other;
On September 9, 2002, she was informed that she had been placed on AWOL
for the holiday of September 1, 2002 and pay adjustment was denied;
On October 23, 2002, she observed a casual employee and his girlfriend
talking numerous times during the course of the night;
On October 29, 2002, her supervisor yelled at her coworker and told her
to stay away from her machine;
She observed a casual employee using his cell phone and talking to
his girlfriend;
On November 7, 2002, she observed an employee talking to his fianc�;
On November 11, 2002, she was told that her attendance was fine;
On November 18, 2002, a coworker told her that a supervisor was hiding
and watching her;
She observed an employee talking to another employee;
On November 20, 2002, a supervisor came to her machine and informed that
she was stacking 3 trays high which was a safety hazard but she was not
the one stacking them 3 trays high;
On November 25, 2002, she and an employee talk to each other and nothing
was said about it;
On November 26, 2002, a supervisor informed her that she had extended
her break even though others left break at the same time;
On November 27, 2002, an Acting Supervisor asked the whereabout of a
casual employee and she informed him that he was talking to his girlfriend
at city side but he did not go over and say anything to them;
On December 5, 2002, she observed two employees having lunch together
in the break room;
On January 28, 2003, when she asked a Supervisor for union time, he stated
he was not her supervisor but would give her request to her supervisor;
On January 29, 2003, a Supervisor, described in (16), yelled to her
to sweep the packet �Now� and would not sign her PS form 7020 as
notification that she was requesting union time and told her to go back
to sweep the machine;
On February 23, 2003, her union steward informed her that her step 2
grievance concerning reimbursement for her doctor's visit for medical
documentation for a Family Medical Leave Act (FMLA) condition was denied;
On an unspecified date(s), she was subjected to a hostile work environment
when she read a statement made by a Labor Relations Specialist in response
to questions asked by a Dispute Resolution Specialist relative to the
instant complaint form, which violated her privacy when she indicated
that she compared her PS form 3972 to that of a coworker in investigating
a pattern;
On April 23, 2003, she was informed by the union steward that her pay
location was going to be abolished and management made a proposal that
everyone would keep the same days off except her and to date the proposed
changes have not taken place; and
On an unspecified date, she also read statements from two supervisors
in response to her claims raised in this instant complaint that were not
accurate and she indicated that she was not satisfied with the response.
Complainant has not challenged the agency's framing of the complaint.
With regard to claims (1) through (15), the alleged incidents occurred
from May 9, 2002, to December 5, 2002, but complainant did not contact
an EEO Counselor until March 3, 2003, which was beyond the 45-day time
limit set by the regulations. Therefore, we find that claims (1) - (15)
were properly dismissed for untimely EEO Counselor contact pursuant to
29 C.F.R. � 1614.107(a)(2).
With regard to claims (16) and (17), the Commission finds that these
matters concern complainant's request for union time. The Commission
finds that such a claim involve an interpretation of the collective
bargaining agreement which is beyond the Commission's jurisdiction.
Therefore, we find that claims (16) and (17) are properly dismissed for
failure to state a claim.
Upon review, the Commission also finds that claim (18) fails to state a
claim since it constitutes a collateral attack on the grievance process.
Upon review, the Commission finds that claims (19) and (21) allege
complainant's dissatisfaction with the agency's improper EEO complaint
processing regarding the instant complaint. 29 C.F.R. � 1614.107
(a)(8). The Commission also finds that claim (20) alleges a proposed
action, and there is no evidence that complainant's pay location was
actually abolished and her days off were actually changed. 29 C.F.R. �
1614.107(a)(5).
Accordingly, the agency's decision to dismiss the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 10, 2004
__________________
Date