01A32740_r
07-09-2003
Thelma D. Minton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thelma D. Minton v. United States Postal Service
01A32740
July 9, 2003
.
Thelma D. Minton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32740
Agency No. 4G-780-0282-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on February 28, 2003, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that she was discriminated
against based on sex, age, disability and retaliation. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
on November 4, 2002, complainant filed a formal complaint. The agency
framed the claim as follows:
On May 28, 2002, complainant received a phone call after complainant
retired on disability from a Human Resource Specialist, instructing
complainant to return an ergonomic chair, which was provided during
employment, and complainant was not able to retrieve her Thrift Savings
Plan contributions until the Postal Service processed her disability
retirement.
On February 28, 2003, the agency issued a final decision dismissing
the complaint for failure to state a claim. The agency reasoned that
complainant failed to establish standing as an �aggrieved� employee.
The agency stated that the alleged action did not cause any concrete
effect on complainant's employment status and she did not suffer any
measurable personal harm.
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).
Here, complainant contends on appeal that she was harassed when she
received a phone call from her supervisor, instructing her to return an
ergonomically correct chair that purportedly belonged to the agency.
Thereafter, complainant states that she called the Thrift Savings
Plan Office because she had not received her retirement money, and was
referred to the personnel office. The personnel office informed her that
they were �holding [her] Form 50 until [she] return[ed] the chair.� In
her formal complaint, complainant explains that she did not realize the
chair was postal property, and on May 25, 2002, she returned the chair.
She contends that her Form 50 was intentionally �held up� and that the
agency did not need to �go about it that way�.
The Commission finds that complainant has failed to establish that she
suffered a personal harm or loss with respect to a term, condition,
or privilege of her employment. We do not find that the alleged events
rendered complainant an �aggrieved� employee.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
July 9 , 2003
__________________
Date