0120110827
12-06-2011
Anne F. Burch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Anne F. Burch,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120110827
Agency No. 4J-604-0109-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 18, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., Section 501 of
the Rehabilitation Act of 1973, 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.
BACKGROUND
Complainant was a Customer Service Supervisor at the Agency’s Aurora
Illinois Post Office in Aurora, Illinois. She resigned in September
2001. On September 25, 2010, she filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of age
(currently 50 years old), sex (female), color (White), disability and
reprisal (anonymously called the EEO office, and false allegations of
discrimination against her) 1 when:
1. she was placed on permanent disability when she was employed;
2. she was never provided a final notice from a mediator’s meeting
between herself, the Postmaster, the union steward, and an employee (she
suggests the employee was dissatisfied with result of mediation/EEO case,
and wrote she was called back to handle an arbitration meeting in 2002);
3. an employee has stalked and followed her;
4. no one notified her of any problems regarding her termination of Agency
benefits; her resignation retirement benefits balance was mailed to her,
and she had to pay it back;
5. Agency information was disclosed without her knowledge or consent,
i.e., prospective employers are implying that she has EEO complaints
and workers’ compensation claims, and such lawsuit information keeps
resurfacing; her benefit information, which included her dependants and
personal information was disclosed, which infiltrated into her medical
records and health benefits due to insurance claims being seen by family
members and co-workers; her retirement and insurance information was
disclosed recently and her family members viewed it in a lawsuit.
The Agency dismissed the complaint for failure to timely initiate EEO
counseling and failure to state a claim. On timeliness, the Agency
reasoned that Complainant resigned in 2001 and other than a reference to
an arbitration hearing in 2002, there were no other dates of reference
on her claims.
On failure to state a claim, the Agency reasoned in relevant part that
some of Complainant’s claims are vague and lack the specificity required
by 29 C.F.R. § 1614.106(c). The Agency also reasoned that some of the
claims were collateral attacks on the Office of Personnel Management
(OPM) and Office of Workers’ Compensation (OWCP) processes.
On appeal, Complainant makes no argument. In opposition to the appeal,
the Agency urges the Commission to affirm its dismissal.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of
the alleged discriminatory action, or in the case of a personnel action,
within 45 days of the effective date of the action. 29 C.F.R. §�
�1614.105(a)(1) & .107(a)(2). Complainant resigned in September 2001,
and initiated contact with an EEO counselor on June 22, 2010. While she
does not supply many dates, the nature of incidents 1, 2, and 4, indicate
they occurred years prior to her contacting an EEO counselor. Moreover,
she does not contend that claims 2 and 5 occurred within 45 calendar days
of her contact with an EEO counselor, even after the Agency dismissed
her entire complaint for failure to timely initiate EEO counseling.
The Agency’s dismissal of Complainant’s complaint for failure to
timely initiate EEO counseling is affirmed.
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). We find that claim 2 fails
to state a claim because Complainant was not harmed by the Agency not
notifying her of the results of an employee’s grievance/EEO case.
To the extent that claim 3 regards an employee stalking Complainant
years after she ceased her employment, we find that this matter fails to
state a claim because it is insufficiently connected to her employment
to constitute a claim of employment discrimination. On the reprisal
claim, Complainant does not contend that Agency management asked the
employee to stalk her for her contact with an EEO counselor which was
anonymously made.
The portion of claim 4 about not being notified of problems with her
benefits and claim 5 fails to state a claim for being to vague to
investigate. Quesada v. Department of Homeland Security (Customs and
Border Protection Agency), EEOC Appeal No. 0120100816 (May 25, 2010).
The Agency’s dismissal is AFFIRMED.
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
December 6, 2011
__________________
Date
1 On appeal, Complainant added the basis of age, and explained for
the first time her reprisal basis. Bases may be added on appeal.
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970).
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0120110827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110827