Kathryn M. Sledge, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionMay 18, 2005
01a52372 (E.E.O.C. May. 18, 2005)

01a52372

05-18-2005

Kathryn M. Sledge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.


Kathryn M. Sledge v. United States Postal Service

01A52372

May 18, 2005

.

Kathryn M. Sledge,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 01A52372

Agency No. 1E-681-0058-04

DECISION

Upon review, the Commission finds that the issues in complainant's

complaint were properly dismissed pursuant to 29 C.F.R. � 1614.107 for

failure to state a claim, for untimely EEO counselor contact, for raising

the issues in a negotiated grievance procedure, and for being moot.

In a formal complaint dated September 10, 2004, complainant alleged that

she was subjected to discrimination on the basis of reprisal for prior

EEO activity when:

on an unspecified date in June 2004, she was not allowed to work

overtime;

on December 1, 2003, she received a 7-day Suspension, reduced to a

Letter of Warning;

on an unspecified date she was told she had discipline in her Labor file;

in August 2002, her PS-3971 (Notification of Absence) was changed and

false leave was recorded; and,

on May 12, 2004, she was issued a Notice of Suspension of 14 Days or

Less, 7 Calendar Day Suspension.

On January 20, 2005, the agency issued a final decision. The agency

dismissed issue 1 for being moot. Specifically, the agency concluded

that the issue raised in the complaint was no longer in dispute because

a settlement agreement had been reached as a result of complainant

filing a union grievance. The agency dismissed issues 2 and 4 for

untimely EEO counselor contact. In regard to issue 2, the agency found

that the alleged discriminatory incident occurred on December 1, 2003,

but complainant did not seek counseling until May 17, 2004. In regard

to issue 4, the agency found that the alleged discriminatory incident

occurred in August 2002, but complainant did not seek counseling until

May 17, 2004. The agency dismissed issue 3 for failure to state a claim.

The agency found that all employees who have been disciplined have copies

of the respective disciplinary action in files maintained by the agency.

The agency dismissed issue 5 for failure to state a claim. In particular,

the agency found that a settlement agreement had been reached as a result

of complainant filing a union grievance. The agency noted that the 7

Calendar Day Suspension was expunged from complainant's record.

In regard to issues 1 and 5, the Commission concludes that this portion

of the complaint was properly dismissed. In reaching this conclusion,

the Commission notes that EEOC Regulation 29 C.F.R. � 1614.107(a)(4)

permit dismissal of a complaint, or portion thereof, where complainant

has raised a matter in a negotiated grievance procedure.

In regard to issues 2 and 4, the record discloses that the alleged

discriminatory incidents occurred in August 2002 and December 2003,

but complainant did not initiate contact with a Counselor until May 17,

2004. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent

part, that an aggrieved employee must initiate contact with a Counselor

within 45 days of the date of the matter alleged to be discriminatory.

On appeal, complainant has presented no persuasive arguments or evidence

warranting an extension of the time limit for initiating EEO Counselor

contact. Under these circumstances, the Commission concludes that the

agency properly dismissed issues 2 and 4 for untimely EEO counselor

contact.

In regard to issue 3, the Commission concludes 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).

Accordingly, the agency's final decision dismissing complainant's

complaint 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

May 18, 2005

__________________

Date