Joanne Teal, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 2, 2003
01A34034_r (E.E.O.C. Dec. 2, 2003)

01A34034_r

12-02-2003

Joanne Teal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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).