01983495
06-07-1999
Sandra Perillo, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Sandra Perillo v. Department of the Treasury
01983495
June 7, 1999
Sandra Perillo, )
Appellant, )
)
v. ) Appeal No. 01983495
) Agency No. 94-3224R
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a 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. �2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final decision was received by
appellant on February 6, 1998. The appeal was postmarked March 3, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On July 30, 1994, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of sex,
national origin, race, disability, and reprisal.
On November 22, 1994, the agency issued a final decision. Therein,
the agency determined that appellant's formal complaint was comprised
of seven allegations, that were identified in the following fashion:
1. Appellant was downgraded.
2. Appellant was harassed, denied opportunities, and treated with
disrespect.
3. The Personnel Office failed to timely address appellant's complaints.
4. The EEO Officer told appellant the latter had no complaint and did
not "forward" the complaint for processing.
5. Appellant's manager directed an insensitive remark at appellant on
May 27, 1994, during a conversation between the two of them.
6. Appellant was notified on July 12, 1994, that she would not be
allowed to perform any duties beyond her position description.
7. Appellant was notified of the agency's intention to reassign her to
an IRS position effective June 26, 1994.
The agency dismissed allegations 1 - 5 for failure to state a claim.
Allegation 1 was also dismissed on the alternative grounds that appellant
failed to timely contact an EEO Counselor and that it addressed the
same matter that was raised before the Merits Systems Protection Board.
Moreover, allegations 1 - 4 and allegation 7 were dismissed pursuant to
29 C.F.R. �1614.107(b) for failure to seek EEO counseling. Finally,
allegations 6 and 7 were dismissed pursuant to 29 C.F.R. �1614.107(e)
for raising issues that were tantamount to a proposed action.
Following appellant's appeal from the final agency decision, the
Commission affirmed the agency's dismissal of allegations 1 - 5 and 7.
Regarding allegation 6, the Commission determined that the agency erred
in dismissing this allegation. Specifically, the agency found that
appellant raised this allegation as part of a pattern of discriminatory
harassment and that the agency could not therefore dismiss it on the
grounds that it addressed a proposed agency action. The Commission
reversed the agency's dismissal of allegation 6 and remanded it to the
agency for further processing. Perillo v. Department of the Treasury,
EEOC Appeal No. 01951386 (January 19, 1996).
On March 19, 1996, the agency informed appellant that pursuant to the
Commission decision of January 19, 1996, allegation 6 was accepted for
investigation, and was identified in the following manner:
Whether Complainant was discriminated against . . . when on July 12,
1994, Complainant was notified that she would not be allowed to perform
any duties beyond her position description.
Following an investigation of allegation 6, appellant requested a hearing
before an Administrative Judge, by letter dated August 14, 1996.
By letter to the Commission dated January 21, 1998, the Administrative
Judge remanded allegation 6 to the agency with the recommendation that
it be dismissed for failure to state a claim.
On February 3, 1998, the agency dismissed allegation 6 for failure to
state a claim. The agency found that appellant's physician stated,
by letter dated June 10, 1994, that she understood that appellant was
working as a reviewer; and that the physician recommended to the agency
that she be left in the reviewer position where she seemed comfortable.
The agency further found that, by memorandum dated July 12, 1994,
appellant was informed that based on the physician's letter of June 10,
1994, and the agency's interest in assisting appellant, it was decided
to grant the request that appellant remain assigned to perform reviewer
duties until medically released to perform other assignments. The agency
determined that appellant has not identified any loss or harm due to the
agency's issuance of the July 12, 1994 memorandum. The agency further
determined that this matter was not part of a pattern of harassment.
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 determines that the agency properly dismissed allegation
6 for failure to state a claim. Appellant has not identified a harm
or loss regarding a term, condition, or privilege of employment, that
resulted from the issuance of the July 12, 1994 memorandum informing
her that she would not be allowed to perform any duties beyond those
contained in her position description. Accordingly, the agency's decision
to dismiss allegation 6 for failure to state a claim 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:
June 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations