01A44192_r
09-17-2004
Elizabeth A. Younie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth A. Younie v. United States Postal Service
01A44192
September 17, 2004
.
Elizabeth A. Younie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44192
Agency No. 4C-450-0048-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2004, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), disability
(Emphysema), and reprisal for prior EEO activity when:
On May 23, 2003, complainant called in sick and was told if she did not
go to the doctor's, she would pay the consequences;
On November 17, 2003, complainant took two days of emergency family leave,
due to a family emergency, and lost her casual appointment; and
On March 3, 2004, complainant had a medical emergency and was referred
to the employee assistance program (EAP) by management.
The agency dismissed issues (1) and (2) pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The agency noted that the alleged incidents occurred on May 23, 2003,
and November 17, 2003; however, complainant did not initiate EEO Counselor
contact until March 18, 2004. Additionally, the agency dismissed issue
(3) pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
Upon review, we find the agency properly dismissed issues (1) and (2) for
untimely EEO Counselor contact. The record discloses that the alleged
discriminatory incidents in issues (1) and (2) occurred on May 23,
2003, and November 17, 2003; however, complainant did not initiate EEO
Counselor contact until March 18, 2004, which is beyond the applicable
limitations period. On appeal, complainant failed to present adequate
justification to warrant an extension of the time limit. Additionally,
we find that issue (3) fails to state a claim because complainant has
failed to show that she suffered a harm or loss to a term, condition
or privilege of employment for which there is a remedy. Accordingly,
the agency's decision dismissing complainant's 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
September 17, 2004
__________________
Date