0120142333
10-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142333
Agency No. 4J-606-0087-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 7, 2014, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Manager, Customer Service, at the Agency's Englewood Station facility in Chicago, Illinois.
On May 1, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination in reprisal for prior protected activity when:
1. she received a PS-Form 2570 (EEO Dispute Resolution Specialist's Inquiry Report) in which the Labor Relations Manager stated her removal had been affirmed;
2. a National Association of Postal Supervisors (NAPS) retirement book listed her as a retiree; and
3. NAPS officials misappropriated NAPS funds and did not utilize funds to pay for a lawyer to represent her.
In the instant final decision, the Agency dismissed claim 1 on the grounds that it alleged dissatisfaction with the processing of a previously filed EEO complaint. Specifically, the Agency stated that the essence of this claim is Complainant's receipt of a Form 2570, wherein a Labor Relations Manager stated that Complainant's removal had been affirmed. The Agency noted that it was clear that Complainant was asserting dissatisfaction with an Agency response in Case No. 4J-606-0027-14, which was dismissed by the Agency on March 17, 2014.
The Agency dismissed claims 2 and 3, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R.� 1614. 107(a) (8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint.
We first note that in pre-complaint documents, Complainant has stated that the matter of her separation from Agency employment "is on appeal at the district an[d] federal courts." Therefore, a fair reading of claim 1 indicates that it does not address Complainant's separation from Agency employment, but rather involves a statement made by an Agency official to an EEO counselor (and recorded on a Form 2570) in another EEO complaint (Agency Complaint No. 4J-606-0027-14). While no documentation of this prior case is contained in the record, on appeal, Complainant does not dispute the Agency's characterization of claim 1 as involving her prior complaint. We therefore determine that, given the specific circumstances of this case, the Agency properly dismissed claim 1.
Claims 2 and 3
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; �1614.106(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).
In claims 2 and 3, Complainant asserted that the NAPS discriminated against her when the retirement book listed her as a retiree and NAPS funds were not used to pay for her attorney. We find that the Agency properly determined that the claims are against the NAPS and not against the Agency and dismissed for failure to state a claim. With regard to these two claims, 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.
CONCLUSION
Accordingly, the Agency's final decision dismissing the formal complaint for the reasons stated herein 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
October 8, 2014
__________________
Date
2
0120142333
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142333