0120122721
12-07-2012
Victoria Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Victoria Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122721
Agency No. 4J-606-0051-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 6, 2012, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Modified Clerk at the Agency's Lakeview Station facility in Chicago, Illinois. Complainant has since filed for a disability retirement.
On May 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and disability (feet) when:
1. Since 2003, the Agency did not permit her to start her shift at 5:00 AM;
2. Since May 19, 2010, the Agency reduced her hours;
3. On November 5, 2011, her position was abolished; and
4. On February 4, 2012, she was falsely accused of "Express Mail Failures."
The record discloses that Complainant and the Agency entered into a settlement agreement in September 2001 as a result of an Office of Workers Compensation settlement. That agreement permitted her to have a 5:00 AM start time, but the Agency had not complied. Complainant acknowledges that she is raising this as a new claim, and not as a breach of settlement claim.
With regard to claim two, the alleged discriminatory event occurred on May 19, 2010, when her hours were reduced. Complainant identified three other women who were permitted to continue working eight hours. The Agency issued Complainant a Notice of Right to File on August 18, 2010, but Complainant did not file a formal complaint. The record further reflects that the change was the result of Complainant's acceptance of a new Offer of Modified Assignment / Limited Duty.
During this same period, her supervisor requested that Complainant update her medical information (which Complainant updated). The Agency's updated records, however, referred to Complainant's condition as a sprained back, which Complainant denies ever claiming. On October 18, 2011, the Agency abolished her bid assignment. The record includes the Employee Notification, Abolishment of Position - Involuntary Reassignment Within the Installation. The notice advised Complainant that her bid assignment would be abolished effective November 5, 2011 and that she would become an unassigned regular employee.
The record shows that she did not initiate contact with an EEO Counselor on her claims until February 7, 2012, which is beyond the forty-five (45) day limitation period.
On or about February 4, 2012, Complainant was directed to deliver six Express Mail pieces by 10:30 AM. She was not able to deliver the pieces. The Agency gave Complainant an investigative interview, but it did not issue any discipline or take any adverse action.
The Agency dismissed the first three allegations for untimely EEO contact.
The Agency next dismissed the fourth claim for failure to state a claim. The Agency reasoned that the February 4, 2012 incident did not result any disciplinary action and Complainant did not allege that the Agency subjected her to an adverse action.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the alleged discrimination or challenged personnel action.
On appeal, Complainant asks that her claims be investigated, but she has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. The Agency argues that each of the actions alleged in the first three claims pertain to discrete terms of employment (change in start time, number of hours worked, abolishment of her position). She first contacted the EEO Counselor on February 7, 2012, outside of the 45-day period.
The Agency also noted that Complainant was aware of the time requirements because she had prior EEO actions. Our review of the record shows that Complainant initiated the pre-complaint process with regard to the threats of her position being abolished, but she did not file a formal complaint.
Complainant acknowledges that she had prior EEO activity and does not provide an explanation for not filing on time with regard to this matter. In addition, she acknowledges that she is not raising a breach of settlement agreement claim with regard to the Agency's refusal to permit her to start her day at 5:00 AM. We find that her EEO contact was untimely.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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. 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. 0593109 (April 21, 1994).
With regard to her claim that Complainant was falsely accused of causing Express Mail Failures, Complainant does not state that the Agency took any adverse action against her because of the delay in getting the Express Mail packages delivered. Complainant failed to identify a specific harm that she sustained. We find that claim four fails to state a claim.
We note that, on appeal, Complainant raised new allegations. Specifically, she claimed her supervisor refused to respond to her requests for work within her medical restrictions. She claimed that he denied her request for leave under the Family and Medical Leave Act. She claimed that she was not paid for the month of April of 2012. In addition, she alleged that management (the Manager of Human Resources) issued Complainant a Notification of Personnel Action (Involuntary Assignment), which was to be effective March 10, 2012. The record shows that the Manager of Human Resources signed the Notice on March 20, 2012. The Notice stated "Employee did not meet minimum requires of the city carrier position".
To the extent that Complainant wishes to raise any new issues that may have occurred after her EEO contact, she may bring those matters to the attention of the EEO Counselor and file a separate new claim. She should initiate contact with an EEO Counselor within 15 days after she received this decision. The Commission advises the Agency that if Complainant seeks EEO counseling regarding the new claims within the above15-day period, the date she raised these claims shall be deemed the date of the initial EEO contact, unless she previously contacted a counselor regarding these matters, in which case the earlier date would serve as the EEO Counselor contact date.
Upon review, we find that Complainant's complaint was properly dismissed.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 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 (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 (Z0610)
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
December 7, 2012
__________________
Date
2
0120122721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122721