01A34613_r
12-01-2003
Sandra S. Andrews v. United States Postal Service
01A34613
December 1, 2003
.
Sandra S. Andrews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34613
Agency No. 4C-442-0082-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 1, 2003, 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.
In her complaint, filed on May 5, 2003, complainant alleged that she
was subjected to discrimination in reprisal for prior EEO activity when:
(1) on January 24, 2003, during an EEO mediation, a settlement offer
for another case was openly discussed; and
(2) on March 3, 2003, a part-time flexible refused to assist her and
the Postmaster condoned the refusal.
The agency dismissed claim (1) for alleging dissatisfaction with
the processing of her prior complaint. The agency determined that
complainant's claim concerns what she considers improper handling of
her previous EEO complaint when a Labor Relations Specialist openly
discussed a settlement offer with the Postmaster and a mediator concerning
complainant's previous complaint (Agency No. 4C-442-0090-02). The agency
dismissed claim (2) for failure to state a claim.
Claim (2)
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). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers 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).
Regarding claim (2), complainant contends that a part-time flexible
refused to assist her and that the Postmaster condoned the part-time
flexible's refusal. We find that complainant has not shown harm to a
term, condition, or privilege of employment, and thus fails to state a
claim. We determine that the agency properly dismissed claim (2).
Claim (1)
While the agency dismissed claim (1) on the grounds that it alleges
dissatisfaction with the processing of her prior complaint, the
Commission determines this claim is more properly analyzed pursuant to
29 C.F.R. � 1614.107(a)(1), regarding whether it states a claim. Here,
we find that complainant alleges that during mediation relating to
the present case, the Labor Relations Specialist opened discussed a
settlement offer for complainant's separate complaint. �[S]ettlement
negotiations, including any statements or proposals, are to be treated
as confidential and privileged to facilitate a candid interchange to
settle disputes informally.� See Harris v. Department of the Navy, EEOC
Request No. 05941002 (March 23, 1995). To allow complainant to file a
new complaint regarding the comments made by an agency representative
during settlement negotiations of a previously filed EEO complaint would
defeat this purpose. See Millea v. Department of Veterans Affairs, EEOC
Request No. 05980235 (May 21, 1998); Montague v. Department of the Army,
EEOC Request No. 05920231 (May 2, 1992). The Commission determines that
complainant fails to state a processable claim with regard to the matter
raised in claim (1).
Accordingly, the agency's final decision dismissing the complaint 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
December 1, 2003
__________________
Date