01A33727_r
03-05-2004
Elaine C. Brewer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elaine Brewer v. United States Postal Service
01A33727
March 5, 2004
.
Elaine C. Brewer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33727
Agency No. 4G-752-0165-03
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, issued on April 16, 2003, pertaining to 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.;
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On March 8, 2003, complainant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of race,
color, sex, age, disability and in reprisal for prior protected activity.
In its April 16, 2003 final decision, the agency determined that
complainant's complaint was comprised of the following claim:
On February 11, 2003, complainant's certified letter sent to the Manager,
Lakewood Post Office, was returned unopened and stamped refused.
The agency dismissed the complaint for failure to state a claim.
The agency reasoned that complainant failed to show that she was harmed
by any alleged adverse management action nor that she would benefit from
the intervention of the Commission.
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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
On appeal, complainant contends that, while she began the retirement
process in December 2002, her application for retirement disability was
not received by the Office of Personnel Management (OPM) until May 14,
2003. Complainant argues that her Station Manager deliberately caused
the delay by refusing to accept her letter containing the Supervisor's
Statement as required by OPM. Further, complainant states that "[h]e
did not correct his actions until I filed this EEOC complaint."
The Commission finds that the complainant has failed to show how the
alleged incident resulted in a personal harm or loss to a term, condition
or privilege of her employment. Furthermore, in the present case, we
find that there is no remedial relief available for complainant should
she prevail on her complaint. Moreno v. Department of the Treasury,
EEOC Request No. 05940139 (October 28, 1994). Although the Commission
held in Czecha v. Department of Commerce, EEOC Request No. 05890929
(November 12, 1989), that the relief requested by a complainant is
irrelevant as to whether a complaint states a processable claim, it is
understood that complainant must state a claim upon which relief can
be granted. Therefore, we find that the agency's decision to dismiss
the complaint was proper.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 5, 2004
__________________
Date