01a52134
05-04-2005
Elaine N. Toland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elaine N. Toland v. United States Postal Service
01A52134
May 4, 2005
.
Elaine N. Toland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52134
Agency No. 4E-680-0103-04
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision regarding 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On July 12, 2004, complainant initiated contact with an EEO Counselor,
claiming that she was the victim of unlawful employment discrimination
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful.
On November 12, 2004, complainant filed the instant formal complaint
claiming she was discriminated against when:
(1) on July 12, 2004, she became aware that her office would not be
allowed to have a computer while other offices, similar to hers, would
have a computer; and,
(2) on August 24, 2004, she became aware other postmasters were granted
an installation ceremony and notice of appointment published in area
newsletter, while she was not.
On December 21, 2004, the agency issued a decision dismissing the
complaint. The agency dismissed claim (1) on the grounds of untimely EEO
Counselor contact. The agency dismissed claim (2) for failure to state
a claim. The agency found that there was no evidence that complainant
was rendered aggrieved by the alleged incident. Complainant filed an
appeal from the agency's December 21, 2004 decision.
Following complainant's appeal, on March 10, 2005, the agency
informed the Commission that it was rescinding the December 21, 2004
decision and issuing a new dismissal.<1> According to the agency,
�not all documentation was provided to this office for determining
acceptance/rejection . . . .� In the March 2005 decision, the agency
again dismissed claim (1), for stating the same claim that is pending
before the agency. The agency determined that claim (1) was identical to
a claim raised in Case No. 4E-680-0075-04, wherein complainant claimed
that on May 14, 2004 her office computer was removed and relocated to
another office.
Regarding claim (2), the agency again dismissed it for failure to state
a claim. The agency noted that the responsible management official
stated that �he was not sure that [complainant] would want the ceremony
because it was a downgrade or transfer and he had some concern that you
might take exception to one if he suggested it.�
Claim (1)
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.
In the instant case, complainant contends in claim (1) that she learned
that her office would not be allowed to have a computer. The record
contains documentation showing that in Case No. 4E-680-0075-04, filed
on September 8, 2004, complainant alleged that on May 14, 2004, her
office computer was removed and relocated to another office. Therefore,
we agree with the agency's decision to dismiss the claim pursuant to 29
C.F.R. � 1614.107(a)(1).
Claim (2)
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).
In claim (2), complainant alleged that the agency discriminated against
her when they did not grant her an installation ceremony and publish
a notice of appointment in the area newsletter. The Commission agrees
that complainant has failed to show how the alleged events resulted in a
personal loss or harm to a term, condition or privilege of her employment.
Therefore, we find that claim (2) was properly dismissed for failure to
state a claim.
Accordingly, the agency's March 10, 2005 final 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
May 4, 2005
__________________
Date
1Consequently, the Commission will consider the agency's dismissal as
set forth in the subsequent March 10, 2005 final decision.