01983102
02-17-1999
Gertrude Lauderdale, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Gertrude Lauderdale v. United States Postal Service
01983102
February 17, 1999
Gertrude Lauderdale, )
Appellant, )
) Appeal No. 01983102
v. ) Agency No. 1-B-011-0021-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
allegations (1) and (2) of appellant's complaint as not timely, allegation
(3) for failure to state a claim, and the complaint in its entirety as
moot.
BACKGROUND
Appellant met with an EEO Counselor on December 29, 1997 and filed a
formal complaint alleging discrimination based on race (black) and sex
(female), for ongoing discrimination and harassment. Appellant alleges
her former supervisor (Supervisor) used racially derogatory terms in
July, 1997, and on November 7, 1997, when discussing problems she was
having in her work area. Appellant states, after the first incident,
she immediately took the supervisor aside, discussed the matter in detail
and told the supervisor she did not like his language.
Appellant alleges, as part of her ongoing claim of discrimination
and harassment, a co-worker told her that on November 18, 1997, the
supervisor told two co-workers appellant was not at work due to stress
and was receiving workers compensation.
Appellant was awarded a new bid assignment November 8, 1997, and was
reassigned to a different facility and a new supervisor.
ANALYSIS AND FINDINGS
EEO Regulation 29 C.F.R. �1614.107(b) provides that an agency
may dismiss a complaint or a portion of a complaint that fails to
comply with applicable time limits contained in 29 C.F.R. �1614.105.
29 C.F.R. �1614.105(a)(2) provides an aggrieved person must initiate
contact with a Counselor within 45 days of the date of the matter
alleged to be discriminatory, or, in the case of personnel action,
within 45 days of the effective date of the action.
The Commission finds the agency properly dismissed allegations (1) and
(2) as untimely. The record shows appellant contacted an EEO Counselor on
December 29, 1997, more than 45 days after the July, 1997, and November 7,
1997, incidents.
EEO Regulation 29 C.F.R �1614.107(a) provides that an agency may dismiss a
complaint or a portion of a complaint that fails to state a claim pursuant
to 29 C.F.R �1614.103. To state a claim, appellant must establish that
she is an "aggrieved employee." 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 (Apr. 21, 1994).
Appellant claims she was subject to discrimination when, on November
18, 1997, she was informed by a co-worker that supervisor told two
co-workers appellant was on leave due to stress and was receiving workers
compensation.
To the extent appellant is alleging discrimination based on supervisor's
disclosure, the Commission finds appellant has failed to show she was
harmed, and as such, her allegation does not state a claim under 29
C.F.R. �1614.103.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
AFFIRMED.
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 (S0993)
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. 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
Feb 17, 1999
_________________________ ________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations