01a50315
01-31-2005
Marcia Pedraza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marcia Pedraza v. United States Postal Service
01A50315
01-31-05
.
Marcia Pedraza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50315
Agency No. 4H-330-0217-04
DECISION
Marcia Pedraza (complainant) filed an appeal from the August 30, 2004,
final decision of the United States Postal Service (agency) concerning a
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
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, a supervisor, claimed discrimination
based on sex and reprisal for prior EEO activity when a manager
(M1) harassed and questioned her about leave taken on May 14, 2004.
In its final decision, the agency dismissed the complaint for failure
to state a claim, in that, since no formal action was taken against her,
complainant did not show that she suffered a harm or loss with regard to
her employment. On appeal, complainant contended that M1 questioned her
leave because of her 'friendship' with another supervisor (SG), who had
approved her leave and taken leave at the same time.<1> In addition,
she stated that M1 had received anonymous letters and gossip about her,
which he shared with a higher-level manager.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim, i.e., a complaint
that fails to allege a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See 29 C.F.R. � 1614.103. Here, complainant failed to show that she
was an "aggrieved employee," that is, one who suffered 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).
Since complainant did not allege a harm or loss as a result of M1's
questions, her complaint fails to state a claim. The Commission finds,
therefore, that the agency properly dismissed her 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
___01-31-05_______________
Date
1SG also filed an appeal from the agency's
dismissal of his formal complaint, which raised a similar issue.
See EEOC Appeal No. 01A50320.