01975379
11-20-1998
Salli R. Hislop, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Salli R. Hislop v. United States Postal Service
01975379
November 20, 1998
Salli R. Hislop, )
Appellant, )
)
v. ) Appeal No. 01975379
) Agency No. 4E-840-0038-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant alleged that
she was subjected to discrimination on the bases of age, retaliation,
and disability (physical), when:
She was denied a Standard Form 8 (SF-8) for unemployment after her
termination, on December 16, 1996;
On or around December 13, 1996, she was denied the opportunity to
place attachments on the Office of Workers' Compensation Programs
(OWCP) Form CA-7 (CA-7) she submitted to her supervisor;
On or around December 13, 1996, her supervisor attempted to pressure
a witness into lying to the unemployment office; and
She was not paid for the week of December 7 through December 14, 1996.
The agency found that appellant failed to state a claim because she did
not demonstrate how she suffered harm in regard to any term or condition
of her employment. The Commission disagrees with this finding.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may reject
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29 C.F.R.
�1614.103 provides that individual and class complaints of employment
discrimination prohibited by Title VII (discrimination on the bases of
race, color, religion, sex, national origin, and reprisal), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least 40 years of age) and the Rehabilitation Act (discrimination on the
basis of disability) shall be processed in accordance with Part 1614 of
the EEOC Regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).
In reference to allegations 1 and 2, the agency stated that the SF-8 is
not necessary to file for unemployment, and that if appellant wanted to
add information to her Form CA-7, she could mail it directly to OWCP.
The issue in this case is not whether appellant had other avenues
available in order to assist her in the unemployment and workers'
compensation processes, but whether she was discriminated against in
the assistance provided by her former employer during these processes.
Because of this, we reverse and remand allegations 1 and 2 of the
agency's final decision for further processing. However, we find that
the agency's decision to dismiss allegations 3 and 4 of appellant's
complaint was proper and is affirmed. In regard to allegation 3,
appellant stated in her complaint that her supervisor attempted to
pressure a witness into lying. An "attempt" is insufficient to show that
the appellant was harmed in relation to a term, condition, or privilege
of her employment. This allegation therefore fails to state a claim.
In reference to allegation 4, the agency corrected appellant's pay so
that she was properly paid for December 7 through December 14, 1996.
Given that appellant is no longer employed by the agency, this issue is
now moot. See Lewis v. USPS, EEOC Appeal No. 01962507 (May 1, 1998).
Accordingly, allegations 1 and 2 are reversed and remanded for further
processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar days
of the completion of all ordered corrective action. The report shall be
submitted to the Compliance Officer, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
The agency's report must contain supporting documentation, and the agency
must send a copy of all submissions to the appellant. If the agency does
not comply with the Commission's order, the appellant may petition the
Commission for enforcement of the order. 29 C.F.R. �1614.503(a). The
appellant also has the right to file a civil action to enforce compliance
with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. ��1614.408, 1614.409, and
1614.503(g). Alternatively, the appellant has the right to file a civil
action on the underlying complaint in accordance with the paragraph below
entitled "Right to File A Civil Action." 29 C.F.R. ��1614.408 and
1614.409. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C.
�2000e-16(c) (Supp. V 1993). If the appellant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov 20, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations