01996961
01-04-2001
Tara K. Talley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tara K. Talley v. U.S. Postal Service
01996961
January 4, 2001
.
Tara K. Talley,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996961
Agency No. 4-C-190-0151-98
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated August 11, 1999, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant contacted an EEO Counselor on April 23, 1998, claiming that
the agency denied her light duty and/or a modified position in October
1996, forcing her out of work without pay.<2> Complainant indicated that
this discrimination was on-going because she just learned that a current
employee had been afforded a light duty assignment. In her complaint,
complainant claimed discrimination on the bases of disability and reprisal
(filing a prior EEO complaint under the Rehabilitation Act), averring
that the agency engaged in on-going discrimination against her after her
termination by providing a current employee with a light duty assignment.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact, finding that the incidents underlying complainant's
claim arose long before her April 1998 EEO Counselor contact, clearly
outside of the forty-five day regulatory limitation. The agency further
determined that complainant did not claim that she was unaware of the
time limitation, or that circumstances justified an extension of the
time limitation.
On appeal, complainant reveals that she filed a previous EEO complaint
regarding her August 1997 removal, which the agency was holding in
abeyance pending arbitration proceedings on the same matter in the
grievance process. Complainant further argues that the discrimination
at issue is on-going, and that her EEO Counselor contact is timely in
this instance because the award of light duty to a current employee
constitutes yet another act of disability discrimination and reprisal
against complainant.
Based on complainant's statements, it appears that she has already
filed an EEO complaint and a grievance regarding the agency's purported
failure to provide her with a reasonable accommodation for her claimed
disability in lieu of terminating her. Although no longer an employee,
complainant now argues that she was harmed when approximately eight months
after her separation, another employee was given a light duty assignment.
To the extent that complainant is claiming discrimination regarding the
agency's failure to provide her with light duty or a modified position,
as well as her subsequent removal, we agree with the agency that the
instant complaint must be dismissed on the grounds of untimely EEO
Counselor contact. 29 C.F.R. � 1614.105(a)(1). To the extent that
complainant is arguing that she has been harmed anew by the agency's
�continuing� discrimination against her, as evidenced by affording a
light duty assignment to another employee, we find that complainant
fails to state a claim under the Commission's regulations.
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, disabling condition, or in reprisal for prior
EEO activity. 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).
In this case, complainant was injured anew by the assignment given to
another employee when complainant is no longer an employee. Complainant
was not subjected to an adverse action by the incident raised.
Therefore, for the reasons set forth above, we find that the
agency properly dismissed the instant complaint, and we AFFIRM that
determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 4, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency issued complainant a notice of removal on August 13, 1997,
based on the results of a fitness for duty examination which revealed
that she did not have the body structure to carry the weight required
for letter carriers.