0120110889
05-09-2011
Stephanie Cook, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Stephanie Cook,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110889
Agency No. 1H-322-0015-10
DECISION
Complainant filed an appeal with this Commission from the Agency's
Decision dated October 13, 2010, dismissing her complaint of unlawful
employment discrimination. 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 and we AFFIRM the Agency’s
Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Handler at the Agency’s Network Distribution Center facility in
Jacksonville, Florida. On September 24, 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination when:
On June 4, 2010, Complainant learned that she was not eligible for
training n the Small Parcel Bundle Sorter and as a result she was denied
the opportunity to become a full time clerk.
In its Final Decision, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor
contact and pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. Agency’s October 13, 2010 Dismissal Of Formal EEO Complaint,
Record on Appeal (ROA) at 9.
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. 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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to state any basis (race,
color, religion, etc.) upon which she was discriminated, that led to a
suffered 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 (April 21, 1994). It is too late
for Complainant to attempt to add a covered basis of discrimination for
the first time on appeal.
CONCLUSION
We therefore AFFIRM the Agency’s Final Decision, dismissing
Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim.
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
May 9, 2011
__________________
Date
2
0120110889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110889