01a52372
05-18-2005
Kathryn M. Sledge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Kathryn M. Sledge v. United States Postal Service
01A52372
May 18, 2005
.
Kathryn M. Sledge,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A52372
Agency No. 1E-681-0058-04
DECISION
Upon review, the Commission finds that the issues in complainant's
complaint were properly dismissed pursuant to 29 C.F.R. � 1614.107 for
failure to state a claim, for untimely EEO counselor contact, for raising
the issues in a negotiated grievance procedure, and for being moot.
In a formal complaint dated September 10, 2004, complainant alleged that
she was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
on an unspecified date in June 2004, she was not allowed to work
overtime;
on December 1, 2003, she received a 7-day Suspension, reduced to a
Letter of Warning;
on an unspecified date she was told she had discipline in her Labor file;
in August 2002, her PS-3971 (Notification of Absence) was changed and
false leave was recorded; and,
on May 12, 2004, she was issued a Notice of Suspension of 14 Days or
Less, 7 Calendar Day Suspension.
On January 20, 2005, the agency issued a final decision. The agency
dismissed issue 1 for being moot. Specifically, the agency concluded
that the issue raised in the complaint was no longer in dispute because
a settlement agreement had been reached as a result of complainant
filing a union grievance. The agency dismissed issues 2 and 4 for
untimely EEO counselor contact. In regard to issue 2, the agency found
that the alleged discriminatory incident occurred on December 1, 2003,
but complainant did not seek counseling until May 17, 2004. In regard
to issue 4, the agency found that the alleged discriminatory incident
occurred in August 2002, but complainant did not seek counseling until
May 17, 2004. The agency dismissed issue 3 for failure to state a claim.
The agency found that all employees who have been disciplined have copies
of the respective disciplinary action in files maintained by the agency.
The agency dismissed issue 5 for failure to state a claim. In particular,
the agency found that a settlement agreement had been reached as a result
of complainant filing a union grievance. The agency noted that the 7
Calendar Day Suspension was expunged from complainant's record.
In regard to issues 1 and 5, the Commission concludes that this portion
of the complaint was properly dismissed. In reaching this conclusion,
the Commission notes that EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
permit dismissal of a complaint, or portion thereof, where complainant
has raised a matter in a negotiated grievance procedure.
In regard to issues 2 and 4, the record discloses that the alleged
discriminatory incidents occurred in August 2002 and December 2003,
but complainant did not initiate contact with a Counselor until May 17,
2004. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent
part, that an aggrieved employee must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be discriminatory.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Under these circumstances, the Commission concludes that the
agency properly dismissed issues 2 and 4 for untimely EEO counselor
contact.
In regard to issue 3, the Commission concludes 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. Department 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 (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
May 18, 2005
__________________
Date