01A34034_r
12-02-2003
Joanne Teal v. United States Postal Service
01A34034
December 2, 2003
.
Joanne Teal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34034
Agency No. 1J-626-0004-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 23, 2002, 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. , Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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.
On October 9, 2002, complainant initiated EEO Counselor contact. Informal
efforts to resolve her concerns were unsuccessful.
In a formal complaint dated January 28, 2003, complainant alleged that
she was subjected to discrimination on the bases of disability, age,
and in reprisal for prior EEO activity when<1>:
(1) beginning March 2002 through December 10, 2002, and continuing,
supervisors and managers of the USPS verbally published information about
a real or perceived mental health condition to other employees who did
not need to know and threatened to provide information about condition
or risk termination;
(2) on March 24, 2002, complainant was issued a wrongful
dismissal/termination;
(3) union and management harboring a hostile work environment; and
(4) on December 17, 2001, her workers' compensation was denied.
The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1), on
the grounds that it states the same claim raised in a prior �complaint�
(identified by the agency under Agency No. 1J-626-0015-02). The agency
determined that complainant received a Notice of Final Interview on July
18, 2002, to file a formal complaint concerning her termination, under
Agency No. 1J-626-0015-02. The agency further determined that because
complainant did not exercise her right to file a formal complaint,
her complaint was closed for failure to pursue.
The agency dismissed claims (1), (3) and (4) for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). Regarding claim (1),
the agency determined that complainant failed to provide names and
dates of incidents in support of her claim that management allegedly
verbally published about a real or perceived mental health condition
to other employees who did not need to know. The agency further noted
that complainant claimed she was threatened to provide information about
her condition or risk termination. Furthermore, the agency noted that
complainant's termination was adjudicated at an arbitration hearing. The
agency stated that the arbitrator issued a decision on October 24,
2002, giving complainant a long term suspension without pay and that
her reinstatement was conditioned upon her ability to demonstrate she
is both physically and mentally fit for duty. The agency determined
that if complainant was dissatisfied with the arbitrator's decision,
she should have raised it in the proper forum.
Regarding claim (3), the agency determined that in her complaint,
complainant claimed that on November 1, 2002, the named union official
who sat in her arbitration hearing for her termination, told her fellow
co-workers that she had to see a psychiatrist in order to return to
work. The agency determined that complainant did not state whether
she informed management concerning the union official's statement to
her co-workers.
Regarding claim (4), the agency determined this claim is, in essence,
impermissible collateral attack on the proceeding before the Department
of Labor's Office of Workers' Compensation Programs (OWCP).
The agency alternatively dismissed the complaint for untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant has engaged in prior EEO activity and is
familiar with the 45-day limitation period.
The record in this case contains a copy of a formal complaint, under
Agency No. 1J-626-0015-02, dated September 20, 2002. In that portion
of the complaint form requesting that complainants provide the alleged
discriminatory incidents, complainant made the following entry:
Workers comp was denied. This was the culmination of a continuing pattern
of harassment and discrimination by the employer. I was demeaned and
insulted in front of co-workers, made to endure unreasonable commands
and accused of criminal conduct by the employer. My termination
of employment in 2002 was also the result of the harassment and
discrimination I endured.
Claims (2) - (4)
While the agency dismissed claim (2) for stating the same claim and
untimely EEO Counselor contact; and claims (3) and (4) for failure to
state a claim and untimely Counselor contact, the Commission finds that
these claims are more properly analyzed in terms of whether they state
the same claim that is pending before or has been decided by the agency
or Commission. See 29 C.F.R. � 1614.107(a)(1).
In the instant final decision, the agency determined that complainant
never filed a formal complaint for Agency No. 1J-626-0015-02; however,
the record contains a copy of complainant's prior complaint for Agency
No. 1J-626-0015-02, dated September 20, 2002. The matters raised in
the instant case and in the prior complaint (Agency No. 1J-626-0015-02)
both involve complainant's harassment claims, the denial of her workers'
compensation claim, and her termination from agency employment. Therefore,
we find that the present and previous claims clearly involve the same
claims and that the agency properly dismissed claims (2), (3), and (4).
Claim (1)
With respect to claim (1), complainant contends she has been subjected to
harassment from March 2002 and continuing, when supervisors and managers
verbally published information about a real or perceived mental health
condition to other employees who did not need to know and threatened to
provide information about condition or risk termination. The Commission
determines that claim (1) 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that the
agency properly dismissed claim (1) for failure to state a claim.
Accordingly, the agency's decision is hereby AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for the
reasons stated herein, we find it unnecessary to address the agency's
alternative grounds of dismissal.
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 2, 2003
__________________
Date
1For purposes of clarity, the Commission has
numbered complainant's claims as claims (1) -(4).