Kathy D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20182019000088 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathy D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2019000088 Agency No. 1C251001418 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 11, 2018, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Technician, PS-05/B at the Agency’s P&D facility in Charleston, West Virginia. On June 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age when: (1) on April 20, 2013, she was converted to Mail Handler Assistant, and she believes her seniority date is incorrect; (2) from a date not specified in 2015 until August 2017, her step increases were incorrect; (3) on October 18, 2014, she was converted to a Full Time Regular, and agreed to a background check, or an additional background check that was completed April 27, 2015, and the report stated she was favorable with exceptions and she believed this was a violation of her 4th Amendment rights and derogatory to her; (4) on a date not specified in March 2017, she believes that management and 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000088 2 the Postal Inspection Service planted a package with drugs in her work area in order to entrap her; (5) from a date not specified in February 2017 through a date not specified in August 2017, she was denied overtime opportunities; (6) on a date not specified, Complainant requested disclosure of her Personnel and Investigative file and she did not receive the complete file; (7) on a date not specified in March 2018, her bid job was reposted and she felt that her options concerning bidding were limited; and (8) on March 2018, she arrived at work to find someone arriving earlier had already started to work hot mail pallets and she was sent to a different operation to work. The Agency dismissed claims 1-5 for untimely EEO counselor, explaining that Complainant sought EEO counseling on March 12, 2018. Claim 6 was dismissed for failing to state a claim as falling under the Freedom of Information Act (FOIA) process. Claims 7 and 8 were also dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as Complainant did not show she was harmed. The instant appeal followed without substantive comment. ANALYSIS AND FINDINGS Claims 1-5 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the last alleged discriminatory event occurred on sometime in August 2017, but Complainant did not initiate contact with an EEO Counselor until March 12, 2018, which is beyond the forty-five (45) day limitation period. We note that the record contains a sworn statement that EEO posters are posted in the work place. On appeal, Complainant did not present any arguments that would justify waiving the time limits for these claims. Claims 6-8 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 2019000088 3 Here, we concur with the Agency that Complainant failed to allege sufficient facts, which if proven true and considered together, would establish that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. As to claim 6, concerning not receiving complete files with personnel and investigative information, we agree that this appears to be related to a FOIA request and Complainant should seek recourse under that process. As to claims 7 and 8, Complainant has not explained how she was harmed. She is not arguing that she was not selected for a position. Rather her formal complaint states that there were only 3 jobs for her to bid on. As to claim 8, he does not explain how she is harmed by being moved to work in another location. To the extent that she states in her complaint that being moved violates the collective bargaining agreement, she must raise such claims in that process. The complaint, as written, without more, simply does not state a viable claim of discrimination or unlawful retaliation. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 2019000088 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature _________________________ Carlton M. Hadden, Director Office of Federal Operations October 31, 2018 Date Copy with citationCopy as parenthetical citation