01993334
03-17-2000
Gloria M. Huizan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gloria M. Huizan, )
Complainant, )
)
v. ) Appeal No. 01993334
) Agency No. 4F-907-0050-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 16, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
February 25, 1999, pertaining to her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<1> In her complaint, complainant alleged that she was subjected to
discrimination on the bases of age (DOB: 9/13/44), physical disability
(cervical, shoulder and lumbar sprain), and reprisal (prior EEO activity)
when on August 26, 1998 she received a letter advising her that her
rehabilitation job assignment would be changed.
The agency dismissed complainant's complaint pursuant to Volume
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(5)), for alleging a proposal to take a personnel action, or
other preliminary step to taking a personnel action is discriminatory.
Specifically, the agency found that the agency's letter of August 26,
1998, was merely a proposal to change complainant's job assignment.
The FAD indicated that to date, complainant's job assignment has not
been changed.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory. Here, complainant has presented no evidence that
she has been harmed at all by the agency's letter of August 26, 1998.
The letter simply requested updated medical information from complainant
regarding her medical restrictions. Complainant continues to occupy
her rehabilitation assignment position with the agency. Complainant has
failed to present persuasive evidence that she has been aggrieved by the
agency's proposed action. In that regard, we find that the agency's
decision dismissing complainant's complaint was proper. The agency's
decision is AFFIRMED for the reasons set forth herein.
Because we affirm the agency's decision to dismiss the complaint for
the reason stated herein, we find it unnecessary to address the agency's
decision to dismiss the complaint on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 17, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ ____________________________
Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.