0120151646
08-14-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120151646
Agency No. 4J530002715
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 4, 2015, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office in Janesville, Wisconsin.
On January 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age and/or retaliation for prior EEO complaint activity1 when, on December 26, 2014, she was issued a letter of warning (LOW), which was later reduced to a discussion through the grievance procedure, and she did not agree with the language of the grievance settlement.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
The record reveals that as a result of a grievance, the Agency removed the LOW from Complainant's records and reduced the discipline to an official discussion. The Commission has previously held that a Letter of Warning reduced to a discussion no longer constitutes a disciplinary action. Yeats v. U.S. Postal Service, EEOC Request No. 05940605 (Oct. 27, 1994); Gafforino v. U.S. Postal Service, EEOC Request No. 05910847 (Dec. 30, 1991). Since there is no indication of any continuing effect on Complainant from having received the LOWr, and as the discussion was not in itself a disciplinary action, we find that complainant is no longer aggrieved. Accordingly, Complainant's complaint was rendered moot. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). To the extent that Complainant does not agree with the language of the grievance settlement, she must raise such concerns under the collective bargaining process, not with the Commission.
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. Dep't 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 (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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2015
__________________
Date
1 While Complainant did not check the "retaliation" box on her formal complaint form, she alleged retaliation during EEO counseling and in the narrative portion of her formal complaint, as well as on appeal.
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