01a45667
09-08-2005
Maria T. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria T. Cox v. United States Postal Service
01A45667
September 8, 2005
.
Maria T. Cox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45667
Agency No. 1K-221-0005-04
DECISION
The complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated August 4, 2004 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.
ISSUES PRESENTED
Whether (1) the FAD properly defined the claims in the complainant's
complaint, and (2) whether it properly dismissed the complaint for failure
to timely seek EEO counseling, failure to state a claim, and for alleging
dissatisfaction with the processing of a previously filed complaint.
BACKGROUND
The complainant filed an EEO complaint claiming that she was
discriminated against based on her race/color (white), national origin
(Hispanic/Argentina),<1> disability (unidentified), and reprisal for
prior EEO activity when: (1) after asking in March 2003 for a resumption
of her medical accommodation by being assigned to the manual mail unit,
the Manager of Distribution Operations (MDO 1) told her she �does not
have any room for people who can't work� and �if you have so much stress,
you should go home�; she was then shuttled back and forth between the
manual mail and the optical character reading (OCR) units for a �couple�
weeks until being given ongoing accommodation in the manual mail unit
by MDO 2, (2) on August 26, 2003, she was informed that her request for
leave without pay (LWOP) for August 28 and 29, 2003 was denied, and (3)
her May 2003 complaint which was allegedly filed was never processed, and
(4) her October 10, 2003 request for mediation in the instant EEO case
was ignored by the agency and the agency delayed processing this case.
The complainant returned to work in March 2003 following a three month
absence. She requested resumed accommodation by being placed in the
manual mail unit. The FAD characterized claim 1 as only concerning
the comments by the MDO 1, and left out the remaining portion which
was written in the EEO complaint. The FAD characterized claim 2 as
the complainant learning on August 27, 2003 of the denial of her LWOP
request, but she stated she learned of the denial the day before.
The FAD characterized claim 4 as concerning the complainant's request
for mediation being ignored, but the complainant also contended the
processing of this case was delayed.
ANALYSIS AND FINDINGS
For the reasons set forth above, we find that claims 1, 2 and 4 should
be defined as set forth in the numbered portion of this decision above.
The FAD dismissed claim 1, in part, for failure to timely initiate contact
with an EEO counselor. The alleged discriminatory events began in March
2003, and ended about two weeks later. The complainant initiated contact
with an EEO counselor regarding the instant complaint on October 7, 2003.
The complainant wrote the EEO counselor in October 2003 that she filed
an �EEO complaint� in May 2003, which she later clarified regarded
being shuttled back and forth for a �couple� weeks between the manual
mail and OCR units. She contended she was not informed of any action
on the complaint. In reply to this contention, the EEO counselor,
also known as a dispute resolution specialist, wrote the complainant
in July 2004 that a review of EEO records showed that the complainant
requested EEO pre-complaint forms on April 21, 2003, they were sent to
her, and there was no record of them being returned by the complainant.
The complainant has not replied to this statement by the EEO counselor.
She is familiar with the EEO process, as evidenced by her filing a number
of prior EEO complaints.
We find that the agency properly dismissed claim 1 for untimely EEO
counseling. The complainant makes no specified argument nor submits
documentation disputing the EEO counselor's representation that while the
complainant asked for pre-complaint forms in April 2003, she never sent
them in. Given this circumstance, we construe the initial EEO contact
regarding claim 1 to have occurred when she first contacted an EEO
counselor for the instant complaint on October 7, 2003, long beyond the
45 day time limit to do so.<2> 29 C.F.R. � 1614.107(a)(2) and .105(a)(1).
Regarding claim 2, the complainant contends that her leave request,
which she made on August 25, 2003, was initially denied by MDO 1, and she
learned this on August 26, 2003. She contended that MDO 2 then approved
her leave request the next day. The complainant's leave request form
is signed as being approved by MDO 2 on August 26, 2003.
The agency dismissed claim 2 for mootness. We find, however, that claim
2 fails to state a claim. Regulation 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. While the leave was initially denied, it was very soon
thereafter approved. The complainant has failed to show an injury to
a term, condition or privilege of employment for which there is a remedy.
The complainant requested compensatory damages in her complaint. When,
as in the instant case, an allegation fails to render a complainant
aggrieved, it will not be converted into a processable claim merely
because the complainant has requested compensatory damages. Therefore,
the Commission finds that the relief requested by the complainant is
irrelevant as to whether her complaint states a processable claim.
Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994).
We now turn to claims 3 and 4. Under 29 C.F.R. � 1614.107(a)(8),
an agency shall dismiss claims that allege dissatisfaction with the
processing of a previously filed complaint. In the present case, the
Commission finds that, in her formal complaint, complainant clearly raises
claims pertaining to the processing of her prior EEO matters. Therefore,
under the Commission's regulations, the agency properly dismissed claims
3 and 4, which are claims of improper processing.
CONCLUSION
The proper definition of the complainant's complaint is set forth in
this decision. The agency's dismissal of the complainant's complaint,
for the reasons stated in this decision, 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
September 8, 2005
__________________
Date
1The complainant stated that her race was Hispanic. The Commission
views Hispanic as a reference to national origin.
2The FAD also dismissed claim 1, as defined therein, for failure to state
a claim. As we are affirming the dismissal for failure to timely seek
EEO counseling, we need not address the other basis of dismissal.