01994758
10-05-1999
Virginia Rosas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Virginia Rosas, )
Appellant, )
)
v. ) Appeal No. 01994758
) Agency No. 4-G-780-0177-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On May 8, 1999, appellant filed a timely appeal with this Commission from
a final agency decision (FAD) issued on April 16, 1999, pertaining to a
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. The
Commission accepts appellant's appeal in accordance with EEOC No. 960,
as amended.<1>
The record reflects that appellant initiated contact with an EEO
Counselor on April 3, 1997. During the counseling period, appellant
alleged that on March 17, 1997 she learned that two of her co-workers
wrote negative letters concerning her workers compensation claim and
said letters appeared in both her personnel file as well as her workers
compensation file.
On August 23, 1997, appellant filed a formal compliant alleging that
she was the victim of unlawful employment discrimination on
the basis of reprisal. Appellant's complaint was comprised of the
matters on which she underwent EEO counseling, discussed above.
On November 19, 1997, the agency issued a final decision dismissing the
aforementioned complaint because appellant failed to accept what the
agency believed to be �full relief�. In response,
appellant appealed to this office on or about December 5, 1997.
On appeal, the Commission reversed the agency's decision to dismiss
appellant's complaint for failure to accept their offer of full relief
and remanded the case back to the agency for further processing.
On April 16, 1999, the agency issued a final decision dismissing
appellant's complaint pursuant to 29 C.F.R. �1614.107(a), for failure
to state a claim. Hence, the current appeal ensued.
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 only proper questions in determining whether an allegation is
within the purview of the EEO process are: (1) Whether the complainant
is an aggrieved employee and (2) Whether he has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Here, appellant alleged that her supervisor solicited
two employees to write negative letters about appellant's workers
compensation claim and that said
letters were found in her personnel file and her workers compensation
file. Appellant's allegations are sufficient to render her an �aggrieved
employee�. Furthermore, since appellant has alleged that the adverse
action was based on reprisal, appellant has raised an allegation within
the purview of the EEOC regulations.
Accordingly, the agency's decision to dismiss appellant's complaint
for failure to state a claim was improper and is REVERSED. Appellant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation 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:
October 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.