0120082227
08-25-2009
Nga N. Mao, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nga N. Mao,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082227
Agency No. 4F-926-0111-08
DECISION
On April 10, 2008, complainant filed a timely appeal with this Commission
from the agency's decision, dated March 31, 2008, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In a complaint dated March 13, 2008,
complainant alleged that she was subjected to discrimination on the
bases of race (Asian), national origin (Vietnamese), and sex (female)
when: on January 13, 2008, she became aware that she could have been
excessed to the Industry Processing and Distribution Center instead of
transferring and losing her seniority in September 2007. Complainant did
not provide a statement on appeal.
The record indicates that complainant was assigned to the Lakewood
post office. At some point, she and other employees learned that the
office would be excessed around September 2007. In May 2007, complainant
voluntarily requested a transfer, pursuant to the agency's eReassignment
process, to the Industry Processing and Distribution Center which
became effective in September 2007.1 Because of her seniority, however,
complainant was not one of the employees who would have been affected by
the excessing at the Lakewood facility.2 In January 2008, complainant
discovered that there was a way that she could have transferred, pursuant
to the excessing procedures, that would have allowed her to retain her
seniority.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered a
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). The record clearly indicates
that complainant's decision to transfer to the Industry Processing and
Distribution Center was voluntary. At the time she decided to transfer,
complainant, apparently, was not aware of the various options that
were available to her that would have allowed her to: (1) remain at
the Lakewood post office with her full seniority; or (2) transfer in
such a manner that would also have allowed her to retain her seniority.
Although it is unfortunate that complainant was not aware of her options
when she made the decision to transfer, the record does not indicate nor
does complainant allege that management took some adverse action against
her or denied her some entitlement in relation to a term, condition or
privilege of her employment. Accordingly, the agency's final decision
dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____08/25/09______________
Date
1 Due to her request and level of seniority, complainant's request was
given "immediate priority" and she was guaranteed a position at her
chosen office.
2 The record contains a September 24, 2007 memorandum indicating that
senior level employees at the Lakewood post office would not be excessed.
If such an employee, however, elected to voluntarily transfer to another
office in the place of a junior employee who was subject to being
excessed at the other office, the senior level employee would, among
other things, retain their seniority and remain a full-time employee at
the new office.
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0120082227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082227