01a01472
08-15-2000
Judy Burkhart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judy Burkhart v. United States Postal Service
01A01472
August 15, 2000
.
Judy Burkhart,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01472
Agency No. 4-C-000-0005-99
DECISION
Upon review, the Commission finds that the agency's decision dated
November 19, 1999, dismissing complainant's complaint for the reasons
set forth herein is proper pursuant to the regulations set forth at 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. ��� 1614.107(a)(1), (2), and (8)).<1>
In her complaint, complainant alleged that: (1) on July 15, 1999, she
visited the Area Office to pick up her personal belongings, her computer
discs, and notes, which were potential evidence for her appeal pending
before Merit Systems Protection Board (MSPB), but they were missing
or destroyed by the agency; (2) on August 6, 1999, she unsuccessfully
requested the �folder Burkhart� which was potential evidence in her
prior EEO complaints; (3) in December 1998 or January 1999, an Operations
Support Manager brought in a younger white male to perform her duties;
(4) On July 16, 1999, she unsuccessfully requested information concerning
her prior EEO complaint, Agency No. 4-C-000-0001-98, under the Freedom
of Information Act (FOIA); (5) on August 10, 1999, an EEO Complaints
Processing Manager contacted her concerning her prior EEO complaint,
Agency No. 4-C-000-0004-99, to tell her that the agency decided to change
her 1998 performance evaluation to �met objectives� and give her the
associated 2% performance increase; (6) in August 1999, she received
a series of PS form 50's pertaining to her 1998 performance change in
order �to set the stage for� dismissal of Agency No. 4-C-000-0004-99;
(7) the agency improperly processed Agency No. 4-C-000-0004-99; (8) on
October 5, 1999, she received a notice of final interview with regard
to the instant complaint; and (9) on September 3, 1998, she received
a letter that she was not selected for an interview for the Operations
Support Specialist, EAS-23 position.
The record indicates that complainant previously filed an EEO
complaint, Agency No. 4-C-000-0004-99, on June 29, 1999, concerning
her 1998 unacceptable performance evaluation, which is pending before
the agency. The record also indicates that complainant previously
filed an EEO complaint, Agency No. 4-C-000-0001-98, on October 13, 1998,
concerning the same matter raised in claim (9), i.e., her nonselection
for an interview for the Operations Support Specialist, EAS-23 position,
which occurred on September 3, 1998.
The agency, in its decision, dismissed claims (1), (2), (4) through (8)
for failure to state a claim. Since claims (1) and (2) concern evidence
which may prove or disprove complainant's MSPB appeal and prior EEO
complaint, respectively, the Commission finds that complainant may raise
the subject matters to the MSPB and during the prior complaint process.
With regard to claim (4), the Commission has held that it does not have
jurisdiction over the processing of a FOIA request. Instead, persons
having a dispute regarding such requests should bring any appeals about
the processing of his or her FOIA requests under the appropriate FOIA
regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386
(June 12, 1997). With regard to claim (5), the Commission finds that
the alleged actions concern the agency's efforts to resolve complainant's
prior complaint, Agency No. 4-C-000-0004-99. It is noted that the agency
is encouraged to make reasonable efforts to voluntarily settle complaints.
See 29 C.F.R. � 1614.603. Thus, the Commission finds that such efforts
do not alone constitute an actionable claim. With regard to claim (6),
complainant does not show that she was harmed as a result of receiving PS
form 50s. Although complainant alleged harassment, the Commission does
not find that the alleged action was sufficiently severe or pervasive
to alter the conditions of her employment such as to state a claim
of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Based on the foregoing, the Commission finds that the
agency's dismissal of claims (1), (2), (4), (5), and (6) for failure to
state a claim was proper.
With regard to claim (7), although the agency dismissed such for failure
to state a claim, the Commission finds that it is more properly dismissed
for alleging dissatisfaction with the processing of a previously filed
complaint pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.107(a)(8)). After a review of the record,
the Commission finds that the subject claim involve the agency's
allegedly improper processing of complainant's prior complaint, Agency
No. 4-C-000-0004-99. Thus, the agency's dismissal of claim (7) was
proper.
Claim (8) concerns complainant's receipt of a notice of final interview
with regard to the instant complaint. It is noted that an EEO Counselor
must provide an aggrieved person a notice of final interview at the end
of the counseling session. See 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.105(d)). Thus, the Commission finds that complainant's receipt
of a notice of final interview for the instant case does not in and of
itself constitute an actionable claim. It appears that complainant is
claiming that her final interview notice improperly included the appeal
process of her complaint. However, upon review, the Commission notes
that the notice did not contain such information; rather it properly
included complainant's right to file the instant complaint, including the
applicable time limit and instructions to fill out the formal complaint
form, PS 2565.
The agency, in its decision, dismissed claim (9) for stating the same
claim that was pending before the agency. After a review of the record,
the Commission finds that complainant previously raised the same matter,
i.e., her nonselection for an interview for the Operations Support
Specialist, EAS-23 position, which occurred on September 3, 1998, in
her prior complaint, Agency No. 4-C-000-0001-98. Thus, the Commission
finds that the agency's dismissal of claim (9) is proper.
The agency, in its decision, dismissed claim (3) due to untimely EEO
Counselor contact. The record indicates that the alleged action involves
the agency's selection of a younger white male to perform complainant's
duties which occurred in December 1998 or January 1999. Complainant
contacted EEO Counselor with regard to the matter on August 23, 1999,
which was beyond the 45-day time limitation. On appeal, complainant
fails to present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor with regard to claim
(3).
Accordingly, the agency's decision is hereby AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 15, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2It is noted that although the agency dismissed claim (5) on the
alternative grounds of stating the same claim that is pending before
the agency, the Commission will not discuss such since its dismissal
for failure to state a claim is affirmed.