0120101766
08-06-2010
Rita A. Lundstrum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Rita A. Lundstrum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101766
Agency No. 4J-530-0019-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated February 26, 2010, dismissing her complaint of unlawful employment. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination when: since June 2009, she has been subjected to ongoing harassment.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant failed to allege a protected basis on her EEO Complaint.
On appeal, Complainant cites incidents of harassment that she was allegedly subjected to by the Agency. Complainant also supplies a copy of the EEO Dispute Resolution Specialist's (DRS) Inquiry Report which was created during the processing of her complaint. The form supplied by Complainant has typed answers filled in and it has been annotated with a handwritten date of birth and has a handwritten "X" in the box for the basis of age (the same box is also circled).
In response to Complainant's appeal, the Agency notes that on appeal Complainant tries to cure the error of not alleging a basis in her complaint by citing age on the DRS report. The Agency states the DRS report was completed by the EEO Counselor and the copy of the form in the record does not contain a basis for alleged discrimination. The Agency states the time to have cited a proper factor of discrimination has passed and argues it is improper for Complainant to do this on appeal.
ANALYSIS AND FINDINGS
Although Complainant supplied a copy of the DRS report on appeal, we find the basis of age was not in original DRS contained in the Agency complaint file. PS Form 2570, EEO Dispute Resolution Specialist's (DRS) Inquiry Report. More importantly, we note that in her EEO Complaint, Complainant did not indicate any protected basis specified therein, she, instead, merely indicated that she was subjected to various incidents of harassment. Complainant's Formal Complaint. Finally, we note that Complainant does not specifically claim any basis for her complaint on appeal and does not claim that she notified the Agency of any protected basis during the processing of her complaint. After a review of the record, we find that Complainant failed to identify any basis within the purview of the regulations. 29 C.F.R. � 1614.101.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 6, 2010
__________________
Date
2
0120101766
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101766