0120161330
06-16-2016
Merilyn W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merilyn W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120161330
Agency No. 4C140000616
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 16, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a former city carrier at the Agency's GMF facility in Rochester, New York.
On January 27, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal when: (1) on a date not specified in 2010, the Agency accessed and shared her personal medical information without authorization; (2) on February 2, 2012, Complainant was terminated; (3) on or around October 23 and November 20, 2015, she sent correspondence to the postmaster of Rochester, New York, about recovery of benefits and received no response; and (4) on or around October 23 and November 20, 2015, she sent correspondence to the postmaster of Rochester, New York, with concerns about her mail and identity theft and received no response.
The Agency dismissed claims 1 and 2 for stating the same claims as those raised in a previously filed EEO complaint (Agency No. 4C-140-0016-12). The Agency dismissed claims 3 and 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The instant appeal followed.2
ANALYSIS AND FINDINGS
Claims 1 and 2
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.
The Agency included copies of the final order and the EEOC Administrative Judge's decision in the record. A review of the information provided indicates that the claims are identical. As such, we find that the Agency properly dismissed claims 1 and 2.
Claims 3 and 4
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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The record establishes that Complainant was terminated from Agency employment effective February 2012, and had not been an Agency employee for three years at the time of the letters referenced in claims 3 and 4. With regard to claim 4, there is no indication that the inquiry about her mail was related to her status as a former employee, rather than a customer of the post office. Therefore, we concur with the Agency's determination that Complainant had no standing to raise this matter in the EEO complaint process and the claim was properly dismissed.
With regard to claim 3, it does appear that Complainant's correspondence concerned her request for benefits stemming from her 2012 termination, arguably giving her standing to raise the matter in the EEO complaint process. However, Complainant has failed to allege how she was harmed by the lack of the response to her correspondence years after her termination. The EEO counselor's report indicates that the postmaster to whom the correspondence was sent is no longer at that facility. Moreover, to the extent that Complainant is challenging the failure to provide her with certain benefits at her termination, that occurred three years prior to seeking EEO counseling and is untimely raised. As such, we find the Agency's dismissal of claim 3 was proper.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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 (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
June 16, 2016
__________________
Date
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.
2 In her appeal, Complainant notes confusion about the Agency case numbers - 4C-140-0006-16 (as used herein) and 4C-140-0006-15 (which was on her formal complaint). Regardless of the number, the Agency's decision dealt with the formal complaint filed on January 27, 2016.
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