0120090897
05-07-2009
Margaret M. Bosko, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margaret M. Bosko,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090897
Agency No. 4B120003908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 2, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a) for untimely EEO
counselor contact and for failure to state a claim.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of sex (female) when: (1) in January 2008
her bid position was abolished; (2) since July 2008 and continuing,
a male employee was working the duties of her abolished position at
a higher level of pay; (3) in February 2008 her leave was denied: and
(4) on an unspecified date, the postmaster had papers at the mediation
pertaining to window service.
The record discloses that with respect to claims 1 and 3, the latest
alleged discriminatory event occurred in February 2008, but complainant
did not initiate contact with an EEO counselor until August 6, 2008, which
is beyond the forty-five (45) day limitation period. 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. On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO counselor contact regarding these
claims.
Regarding claim 4, the Commission finds the matter does not state a
claim. Complainant has not explained how she was harmed by the Postmaster
bring papers to a mediation session.
Regarding claim 2, the record indicates that complainant's
position as a window clerk was abolished along with that of 5 other
employees. Complainant bid on a new job as a clerk in another facility.
When the bulk mail clerk position was posted that contained many of
her old duties, complainant did not bid for it. On appeal1 complainant
states that she had the option of bidding for the job, but declined to
do so because there were things on the job description that she did not
want to do. The male who got the position is the one complainant says
is earning more for doing her old duties. The record indicates that the
bulk mail clerk works window duties on an as-needed basis.
The Commission finds that the claims 2 and 4 fail to state a claim
under the EEOC regulations because complainant failed to show that she
suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Significantly,
with respect to claim 2, the record establishes that complainant could
have bid for the bulk mail clerk position, but chose not to do so.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 7, 2009
__________________
Date
1 In her appeal, complainant states she was notified that her job was
being abolished in January 2007, she was out until May 2007, when she
returned and passed her scheme training, and in July 2007, the male
employee began her job. The Commission notes that if the year 2007 is
correct, the whole complaint is untimely.
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0120090897
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090897