Judy Hong, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a51492 (E.E.O.C. Mar. 15, 2005)

01a51492

03-15-2005

Judy Hong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Judy Hong v. United States Postal Service

01A51492

03-15-05

.

Judy Hong,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51492

Agency No. 4F-913-0154-04

DECISION

Judy Hong (complainant) filed an appeal from the November 9, 2004, final

decision of the United States Postal Service (agency) dismissing the

above-referenced complaint. The appeal is timely filed (see 29 C.F.R. �

1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.

In a formal complaint, complainant claimed discrimination based on

reprisal when her supervisor screamed at her and watched her closely on

June 1, 2004. Complainant contacted an EEO counselor on July 21, 2004.

In its final decision, the agency dismissed the complaint for untimely

EEO contact and failure to state a claim.

The Commission's regulations require an agency to dismiss a complaint with

regard to events that occurred more than 45 days prior to complainant's

initial contact with an EEO counselor. 29 C.F.R. �� 1614.107(a)(2).

We find that complainant failed to contact an EEO counselor in a

timely manner. The Commission's regulations also require an agency to

dismiss a complaint that fails to state a claim within the meaning of

29 C.F.R. �1614.103. The Commission's federal sector case precedent

defines 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). We find that the event

was not sufficiently egregious in nature or pervasive to constitute

illegal harassment. In addition, complainant did not elaborate on her

basis of reprisal.

After a review of the record, including statements and arguments not

addressed herein, and for the reasons stated above, we find that the

agency properly dismissed the complaint.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

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

_____03-15-05_____________

Date