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