0120122175
10-12-2012
Diana Alebord, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Diana Alebord,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122175
Agency No. 4G335007112
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 26, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Service and Distribution Clerk at the Agency's Gulf Gate Branch facility in Sarasota, Florida.
On March 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and disability when:
1. on February 1 and 2, 2012, she was intimidated and humiliated by her manager and union designee/president; and
2. her job bid has been abolished and re-posted annually.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a), for failure to state a claim and/or untimely EEO counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
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).
With respect to claim 1, Complainant alleges that she was intimidated and humiliated by her manager and union designee. The record reflects that Complainant's manager called a meeting at the request of Complainant's union representative to discuss the effect of Complainant's disability on her scheme training performance. Complainant alleges that she was embarrassed at having to discuss the issue with her manager and that, although Complainant's Union representative was called to the meeting in order to support Complainant, she felt that his presence compounded her embarrassment. The record does not indicate that any adverse action was taken against Complainant as a result of the meeting about her scheme training performance. Upon review, we find that Complainant has failed to allege that she suffered any harm with respect to the terms and conditions of her employment. There is no allegation that the Agency's alleged conduct was so severe or pervasive that it altered the conditions of her employment.
Concerning claim 2, 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 in this case indicates that the alleged discriminatory event, i.e. the most recent posting of Complainant's bid job was from September 17, 2011 until September 26, 2011. However, the record further reveals that Complainant did not initiate contact with an EEO Counselor until February 6, 2012, which is beyond the forty-five (45) day limitation period. .
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. � 1614.105(a)(2). On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.1
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed for the reasons set forth herein.
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 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 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
October 12, 2012
__________________
Date
1 The Commission notes here that in Complainant's statement on appeal, she withdraws her appeal of the Agency's dismissal of claim 2 on the grounds that she failed to timely seek EEO counseling.
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0120122175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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