Smita A. Patel, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 2, 2011
0120113117 (E.E.O.C. Dec. 2, 2011)

0120113117

12-02-2011

Smita A. Patel, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.




Smita A. Patel,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120113117

Agency No. 4J-600-0116-10

DECISION

On June 8, 2011, Complainant filed an appeal from the Agency's decision

dated May 10, 2011,1 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., Section 501

of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

ISSUES PRESENTED

The issue presented is whether the Agency properly dismissed

Complainant’s complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked as a Supervisor for Distribution Operations at the Agency’s

Processing and Distribution Center in Palatine, Illinois. On October

9, 2010, Complainant filed a formal complaint alleging that the

Agency subjected her to discrimination on the bases of race (Indian),

national origin (Asian), religion (Hindu), color (brown), disability

(knee reconstruction), age (50), and in reprisal for prior protected

EEO activity when:

1. On May 13, May 14, and May 18, 2010, management agreed to separate

her from service;

2. On an unspecified date, management failed to notify her that her

retirement counseling on May 13, 2010, had been cancelled;

3. On June 9, 2010, she became aware that a payroll deduction from her

salary had been authorized;

4. On an unspecified date, she received correspondence dated June 14,

2010, advising that she was suspended, not allowed to enter the building,

and that her request for additional information would not be responded

to because of her pending EEO complaint; and

5. On July 13, 2010, she did not receive page 1 of a two-page fax sent

to her.

On May 10, 2011, the Agency issued a final decision dismissing the

instant complaint. Specifically, the Agency found that claims 1,

3, and 4 were dismissed for stating the same claims that were already

pending in Agency No. 4J-600-0144-09, which was consolidated with Agency

No. 4J-602-0035-09.2 With regard to claims 2 and 5, the Agency found that

Complainant failed to state a claim pursuant to 29 C.F.R. 1614.107(a)(1).

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that the Agency's final decision dismissing

Complainant's complaint was improper. The Agency urged the Commission

to affirm its decision.

ANALYSIS AND FINDINGS

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 or states the same claim that is pending before or has

been decided by the agency or Commission.

Claims 1, 3, and 4

A review of the record indicates that Complainant filed a prior formal

complaint, Agency No. 4J-600-0144-09, alleging identical matters as

those identified in claims 3 and 4 in the instant formal complaint.

Specifically, in the instant complaint, Complainant alleged in claim 3

that on June 9, 2010, she became aware that a payroll deduction from her

salary had been authorized. In Agency No. 4J-600-0144-09, Complainant’s

claim 5 in that complaint alleged that since on or about April 11, 2010,

she was not properly paid. On March 31, 2010, the Agency’s Eagan,

Minnesota Accounting Service Center notified Complainant that she was

indebted to the Agency based upon Time and Attendance Collection System

(TACS) adjustments. It is evident from the record that in both formal

complaints, Complainant was specifically referencing the TACS collections.

In claim 4 of the instant complaint, Complainant alleged that, on an

unspecified date, she received correspondence dated June 14, 2010,

advising that she was suspended, not allowed to enter the building,

and that her request for additional information would not be responded

to because of her pending EEO complaint. In Agency No. 4J-600-0144-09,

Complainant’s claim 4 alleged that on April 15, 2010, she was not

allowed to enter the building and was told she had been suspended until

further notice. The record demonstrates that the June 14, 2010, letter

Complainant referenced in the instant complaint pertains to the incident

that took place on April 15, 2010, the basis of Agency No. 4J-600-0144-09,

claim 4. Accordingly, the Agency's decision to dismiss claims 3 and 4

in the instant complaint was proper and is AFFIRMED.

We reject the Agency's contention that claim 1 is the same claim

Complainant alleged previously in Agency No. 4J-600-0144-09. In claim

1 of the instant complaint, Complainant alleged that on May 13, May

14, and May 18, 2010, management agreed to separate her from service.

Complainant’s contentions in Agency No. 4J-600-0144-09 make no reference

to separation. As a result, we are not persuaded that claim 1 can be

characterized as the same claim that was pending before or one that

has been decided by the Agency or Commission. However, we find that

claim 1 nonetheless should be dismissed for proposal to take an action.

In Complainant’s affidavit, Complainant asserted that she had “not

yet” been separated from her position. Pursuant to 29 C.F.R. §

1614.107(a)(5), an agency shall dismiss a complaint that “alleges

that a proposal to take a personnel action, or other preliminary step

to taking a personnel action, is discriminatory.”

Claims 2 and 5

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 the agency because of race, color, religion, sex,

national origin, age or disabling condition. 29 C.F.R. §§ 1614.103,

1614.106(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. See Diaz v. Dep't of the Air Force, EEOC

Request No. 05931049 (Apr. 21, 1994).

Claims 2 and 5 of the instant complaint fail to state a claim under the

EEOC regulations because Complainant did not show that she was denied any

entitlement in relation to a term, condition, or privilege of employment

as a result of the denial of retirement counseling or the withholding

of one page of a facsimile. See Schaefer v. U. S. Postal Serv., EEOC

Appeal No. 01A41246 (Sept. 19, 2005) (finding that a complainant did not

state a claim when he was denied a meeting for retirement counseling)

; Orndorff v. Dep’t of the Navy, EEOC Appeal No. 0120103770 (Feb. 4,

2011) (finding that a complainant did not state a claim when the agency

did not provide the complainant with copies of position descriptions).

Moreover, we find that the claim, even if proven to be true and viewed

in a light most favorable to Complainant, would not support a claim

that Complainant has been subjected to harassment that was sufficiently

severe or pervasive to alter the conditions of employment. See Cobb

v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).

Upon review of the record, we find that the Agency properly dismissed

claims 2 and 5 for failure to state a claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

we AFFIRM the Agency's final decision.

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 dale 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

December 2, 2011

Date

1 We note that the final Agency decision is incorrectly dated as being

issued on May 10, 2009, although it references dates as late as March

8, 2011. We assume that the correct date of issuance should have been

listed as May 10, 2011.

2 A 70-page final Agency decision was issued with regard to Agency

No. 4J-600-0144-09 and 4J-602-0035-09 on February 1, 2011, which

Complainant appealed to the Merit Systems Protection Board (MSPB) on

March 8, 2011.

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01-2011-3117

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120113117