01A14796_r
11-19-2002
Marie L. Austin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marie L. Austin v. United States Postal Service
01A14796
November 19, 2002
.
Marie L. Austin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14796
Agency No. 4-H-390-0094-01
DECISION
On January 3, 2001, complainant contacted an EEO Counselor and alleged
that she was discriminated against on the bases of sex, disability and
in reprisal for prior protected activity when:
(1) in 1996, she was not paid for a grievance award;
(2) from 1999 through 2000, she was not paid for mileage added to Route 2;
(3) on December 12, 2000, she was issued a letter of warning; and
(4) on November 16, 2000, she was required to go to a Postal contract
doctor.
On June 6, 2001, complainant filed a formal complaint alleging that she
was discriminated against on the basis of reprisal. The bases of sex
and disability, which were raised during EEO counseling as noted above,
were not listed on her formal complaint form.
On July 9, 2001, the agency issued a final decision. The agency
determined that while complainant raised additional bases of
discrimination during EEO counseling, the sole basis raised by complainant
in her formal complaint was reprisal. The agency dismissed the entire
complaint for failure to state a claim, finding that complainant had no
prior record of EEO activity. The agency also dismissed claims 1 and 4
on the grounds of untimely EEO Counselor contact.
The Commission finds that the instant complaint fails to state a claim
based on reprisal under the EEOC regulations because complainant failed
to show that she had engaged in prior EEO activity at the time of the
alleged discrimination. See 29 C.F.R. � 1614.103(a). Accordingly,
the agency's final decision dismissing the instant complaint is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for
the reason stated herein, we find it unnecessary to address the agency's
alternative dismissal grounds.
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
November 19, 2002
__________________
Date