0120092030
07-24-2009
Heather Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092030
Agency No. 4G770005709
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 18, 2009, dismissing her complaint of unlawful
employment discrimination.
In a formal complaint (PS Form 2565) dated March 4, 2009, complainant
failed to identify any basis for the alleged discrimination or description
of the alleged issue. Thus, the agency dismissed her complaint, pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant
appeal followed.
On appeal, complainant states that during EEO counseling she specifically
raised the basis of reprisal with respect to a non-selection for a
transitional employee position. The EEO Dispute Resolution Specialist's
(DRS) Inquiry Report (EEO counseling report) in the record does confirm
that complainant discussed this specific issue with the dispute resolution
specialist and was thereafter sent her notice of right to file a formal
complaint. The cover letter specifically informed complainant that:
"[t]he complaint must be specific and contain only those issues
either specifically discussed with [the specialist] or issues that
are like or related to the issues." Further, the notice stated that a
complaint must contain "the specific action or matter complained of',
the type of discrimination alleged, and a brief statement of facts."
Because complainant's formal complaint form was essentially blank with the
exception of the statement that she was requesting "all relief under law,"
the agency argues that she abandoned her claim raised during counseling,
and did not identify any other basis or action.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant, in her formal complaint failed
to allege 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). In her appeal, complainant does not explain why she
did not provide any information in her formal complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
July 24, 2009
__________________
Date
2
0120092030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092030