01a55280
12-20-2005
Carol A. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol A. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55280
Agency No. 1H-381-0038-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 12, 2005, 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.
On March 31, 2005, complainant, a Mail Processing Clerk at the agency's
Processing and Distribution Center in Memphis, Tennessee, contacted the
EEO Counselor when, on March 24, 2005, she learned that a fellow Mail
Processing Clerk co-worker had not met all her essential requirements
for the bid job. Complainant believed this to be discrimination and
unfair for she had to meet all her essential requirements before being
placed in her position. Subsequently, complainant filed her formal
EEO complaint in which she alleged discrimination on the basis of race
(Black) when: on March 24, 2005, she became aware that a co-worker had
been allowed to go into a bid job on January 4, 2005, who did not meet
all the essential job requirements.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2)
for failure to contact an EEO counselor in a timely manner.
In particular, the agency noted that complainant was informed that the
co-worker met her requirements via a bulletin dated January 4, 2005.
The agency found that complainant's March 31, 2005 contact was beyond
forty-five days from the date of the bulletin. Therefore, the agency
found that complainant was untimely in contacting an EEO Counselor.
On appeal, complainant asserted that she did not reasonably suspect
discrimination until March 24, 2005. Therefore, her contact on March 31,
2005, should have been considered timely.
Notwithstanding the agency's dismissal of the complaint for untimely
EEO contact, we find that the matter more appropriately should have
been dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). 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). In the case at
hand, complainant failed to show that she was aggrieved by the placement
of the co-worker in the Mail Processing Clerk position. In essence,
complainant's complaint involves a general grievance rather any specific
harm or loss to herself with respect to a term, condition or privilege
of employment. Accordingly, we affirm the dismissal of the complaint,
albeit on different grounds.
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
December 20, 2005
__________________
Date
3
01A55280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036