01A42247
06-10-2004
Elizabeth L. Pacheco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Elizabeth L. Pacheco v. United States Postal Service
01A42247
June 10, 2004
.
Elizabeth L. Pacheco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42247
Agency No. 4H-327-0039-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). In a complaint dated January 16, 2004, complainant
alleged that she was subjected to discrimination on the bases of age
(D.O.B. February 3, 1946) in violation of the ADEA and reprisal for prior
EEO activity,<1> when on November 23, 2003, she was given an official
discussion regarding her job performance and errors.
The Commission finds that the complaint fails 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). This Commission has consistently
held that official discussions alone do not render an employee aggrieved.
See Miranda v. United States Postal Service, EEOC Request No. 05920308
(June 11, 1992); Devine v. United States Postal Service, EEOC Request
No. 05910269 (April 4, 1991). In the present case, while no overt
discipline was administered, complainant alleges that disciplinary
notations were made in her file and requests their removal as part of
her requested relief. The evidence offered by complainant on appeal
concerns disciplinary actions that occurred prior to the official
discussion. There is no indication in the record that complainant
received disciplinary action as a result of the official discussion,
and there is no proof in the record showing that notations from the
official discussion were included in her personnel file. Accordingly,
the agency's final decision dismissing complainant's complaint for
failure to state a claim is 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
June 10, 2004
__________________
Date
1The record indicates that complainant
participated in prior protected activity, but it is unclear under which
statute such activity occurred.