0120101855
08-09-2010
Linda Triplett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Linda Triplett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101855
Agency No. 4J606001310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 23, 2010, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a).
BACKGROUND
During the relevant period, Complainant worked as a Mail Processing Clerk at a Chicago, Illinois processing and distribution center of the Agency. On October 23, 2009, Complainant initiated EEO contact alleging that the Agency discriminated against her on the bases of disability (back and knee injuries and Depressive Disorder) and reprisal for prior protected EEO activity when (1) on December 17, 1998, the Agency failed to honor Complainant's light duty assignment, which worsened her condition, (2) since about 1999 to August 8, 2002, the Agency failed to provide accommodation for Complainant's disability, (3) on August 8, 20021, the Agency terminated Complainant's employment for absence without official leave, but never presented the removal to Complainant, (4) since May 2005, the Agency failed to contact a credit bureau on Complainant's behalf to remove citation of an invalid debt from her credit report, (5) from about August 2003 to September 2009, it subjected Complainant to mail fraud by reporting an address she never had to credit bureaus, and (6) in August 2003, the Agency fraudulently misrepresented that a forwarding order for her mailing address expired.
In its February 23 final decision, the Agency dismissed (1) through (3) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Also, it dismissed (3) - (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that has been raised previously with the agency or Commission for (3) and failure to state a claim for (4) - (6). The instant appeal from Complainant followed. On appeal, Complainant stated that she has not been afforded "due process" and has not been to the facility-at-issue since July 1999 so can not recall the applicable statutory time-frames.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
In the case at hand, for (1) - (3) and (6), we find that Complainant initiated EEO contact in an untimely manner. She initiated contact with an EEO Counselor on October 23, 2009 although the actions alleged occurred between December 1998 and August 2003, which is outside of the statutory timeframe by years.
Alternatively, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). Here, for (4) - (6), we agree with the Agency. We find that Complainant failed to allege 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).
After a careful review of the record, we AFFIRM the final agency decision dismissing the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 9, 2010
__________________
Date
1 We note that the personnel action was effective August 8, but was not processed until January 15, 2004.
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0120101855
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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