0120142536
12-16-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120142536
Agency No. 4G-770-0092-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 2, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Richmond Texas Post Office facility, in Richmond, Texas.
On May 7, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), religion (Baptist), disability (Bilateral Carpal Tunnel/Anxiety), age (46), and reprisal for prior protected EEO activity when:
1) beginning in March of 2013, Complainant was denied a limited duty assignment;
2) on January 7, 2014, management falsely informed the Department of Labor that Complainant had denied a job offer; and
3) on May 7, 2014, a coworker requested that Complainant call in her absence after the coworker was arrested.
The pertinent record shows that Complainant had filed an earlier EEO complaint, identified as Agency Case No. 4G-770-0236-13. That complaint alleged that Complainant had been denied a limited duty assignment, beginning in 2013. Initially, Complainant requested a hearing on that matter, but she withdrew her request for a hearing and requested a final agency decision. On July 1, 2014, the EEOC Administrative Judge in EEOC Case No. 460-2014-00044X remanded the complaint to the Agency for issuance of a decision. On August 7, 2014, the Agency issued its decision, which is currently under consideration in EEOC Appeal 0120143066.
In the May 2014 complaint that is the subject of the instant appeal, this case, The Agency dismissed the complaint for failure to state a claim. The Agency found that allegations (1) and (2) were the subject of her prior complaint (Agency Case No. 4G-770-0236-13) and should not be processed again. The Agency also viewed Complainant's allegation with regard to her worker's compensation (allegation 2) as a collateral attack on the Office of Workers Compensation Programs (OWCP) process. This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
As noted above, Complainant's first allegation (denial of limited duty assignment) is the same as the one she filed in Agency Case No. 4G-770-0236-13. We find that the Agency's dismissal of this allegation was appropriate.
In addition, 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. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We find 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. Complainant does not allege how she was aggrieved by her coworker's request that Complainant call in the coworker's absence. We also agree that allegation (2) is more properly raised within the adjudicatory process of the Department of Labor's Office of Workers Compensation Programs (OWCP).
CONCLUSION
Accordingly, we find that the dismissal was appropriate. We AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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 16, 2014
__________________
Date
2
0120142536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120142536