01984042_r
06-02-1999
Debra P. Beard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Debra P. Beard, )
Appellant, )
)
v. ) Appeal No. 01984042
) Agency No. 4-H-370-0005-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 18, 1997, appellant requested EEO counseling for not being
reappointed to a Temporary Employee (TE) position due to an on-the-job
accident, and for not being given information concerning a program to
transition veterans from TE to career positions. Appellant requested that
she be given a career position to resolve her complaint. The Counselor's
Report, completed November 24, 1997, indicated that appellant alleged
that she was discriminated against when on August 10, 1997, appellant's
TE appointment ended and she was not reappointed. Although the report
does not mention a career appointment in its allegations, the remedy
requested in the report includes giving appellant a career position.
In her undated formal complaint of discrimination, appellant alleged
that she was subjected to discrimination on the bases of race
(Caucasian), color (white), gender (female), physical disability (hand
and disabled veteran), and age (44) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., �501
of the Rehabilitation Act of 1973, 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., when after one manager recommended appellant for
a career position pending successful completion of her ninety (90) day
probationary period as a TE, a supervisor refused to recommend appellant
for reappointment as a TE. Appellant also noted in an explanation of
her allegations that she applied for a position as a career employee,
and identified placement in a career employee position as part of her
requested remedy in her formal complaint.
In a December 11, 1997 Notice of Processing, the agency accepted
appellant's complaint as filed on November 6, 1997, and identified the
allegation to be investigated as �on August 10, 1997, [appellant's] TE
appointment ended and [appellant] was not reappointed.� By letter dated
December 22, 1997, appellant, through her attorney, argued that the agency
improperly defined the allegations in her complaint. Appellant argued
that in her formal complaint she also identified the allegations of not
being converted to career status, and not being considered for career
status after sixty (60) days as required by the VRA.<1>
In a final agency decision (FAD) dated March 27, 1998, the agency found
that it properly defined appellant's complaint in the December 11,
1997 Notice of Processing. Further, the agency found that appellant
raised the additional allegations from her December 22, 1997 letter in
a separate case, Agency Number 4-H-370-0032-98, that appellant received
a Notice of Right to File a complaint on these issues on November 28,
1997, and that appellant never filed a formal complaint for Agency
Number 4-H-370-0032-98.
On April 25, 1998, appellant filed a timely appeal with this Commission
from the March 27, 1998 FAD, arguing that the agency improperly defined
appellant's complaint. On appeal, appellant argues that she properly
raised several allegations, i.e., that appellant's TE position expired
and she was not reappointed, that appellant was singled out when she
was denied a career position, and that appellant was denied her right
to convert to a career position pursuant to the VRA.
The record contains a Request for Counseling from appellant, dated October
22, 1997, for Agency Number 4-H-370-0032-98. In this request, appellant
alleges that she was not recommended for re-hire due to an accident,
that she was not considered for a career appointment because she was not
recommended for re-hire, and that the agency was not following the VRA or
the VAAP. The record also contains a Final Interview and attached Notice
of Right to File a Formal complaint for Agency Number 4-H-370-0032-98,
dated November 24, 1997.
The Commission finds that the agency erred in its definition of
appellant's complaint. Appellant notified the EEO Office of not
being converted to a career position on several occasions: Appellant
identified being appointed to a career position as a requested remedy
in her Pre-Complaint Counseling form, in the Counselor's Report, and
in her formal complaint. Further, appellant raised the matter in the
allegations section of her formal complaint. Accordingly, the agency's
refusal to address the matter was improper.
The agency appears to dismiss the allegation on the alternative grounds of
not being timely alleged. The agency argues that the issue was addressed
in Agency Number 4-H-370-0032-98, but that appellant never raised the
issue after receiving a Notice of Right to File on November 28, 1997.
Appellant's formal complaint for the present case, however, addressed
the matters raised in 4-H-370-0032-98, and predated appellant's Notice
of Right to File for 4-H-370-0032-98. The agency should not have based
the timeliness of appellant's complaint on whether appellant later
filed a complaint in Agency Number 4-H-370-0032-98. Accordingly,
the agency's dismissal of appellant's allegation that she was denied
a conversion to a career position because of her race, color, gender,
physical disability, and age is REVERSED, and the allegation is REMANDED
for further processing.
To the extent that appellant alleges that she was denied rights under the
VRA and VAAP, however, appellant has failed to state a claim, even though
she raised the matter with an EEO Counselor and in her formal complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has repeatedly held that veteran preference or status
is not a protected basis for filing an EEO complaint and therefore such
complaints are not within the purview of EEOC Regulations. See Devereux
v. United States Postal Service, EEOC Request No. 05960869 (Apr. 24,
1997) n.1. Further, the Commission does not have any part in the
enforcement of or jurisdiction over the VRA or VAAP. Accordingly, the
agency's dismissal of appellant's allegations relating to her rights
under the VRA and/or VAAP is AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation regarding
the denial of conversion to career status in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded allegation 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
June 2, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Although no explanation or full title
of the �VRA� is included in the record, the Commission assumes
that �VRA� refers to a law enacted to help disabled veterans find
career civil service employment.