01982171
10-15-1999
Alexander Gutierrez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alexander Gutierrez, )
Appellant, )
)
v. ) Appeal No. 01982171
) Agency No. 1F-951-0032-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 final agency decision was received by
appellant on December 22, 1997. The appeal was postmarked January 21,
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.
Appellant contacted an EEO Counselor on August 4, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when:
(1) on March 12, 1997 the agency retaliated against him for complaining
of racial and ethnic discrimination;
(2) the agency retaliated against him by falsely admitting that [named
individual] had been terminated when he in fact had not been terminated;
(3) the agency transferred [named individual] back to his work location;
(4) the agency failed to invoke the terms and conditions of a �Last
Chance Agreement� signed by [named individual];
(5) on May 12, 1997 appellant's manager informed appellant that he was
being moved out of his work area;
(6) on July 8, 1997, the labor relations specialist told appellant that no
action was going to be taken against [named individual] thereby allowing
the individual to continue to harass appellant; and
(7) as a result of the agency's actions, [named individual] was allowed
to harass appellant and he was forced to quit his job.
Informal efforts to resolve appellant's concerns were unsuccessful.
On October 30, 1997, appellant filed a formal complaint alleging that he
was the victim of unlawful employment discrimination on the bases of race,
national origin, and reprisal. Appellant's complaint was comprised of the
seven allegations for which he underwent EEO counseling, discussed above.
On December 18, 1997, the agency issued a final decision (FAD) accepting
for investigation allegations (1) and (7) of appellant's complaint but
dismissing allegations (2), (3), (4), (5) and (6) for failure to state
a claim.
29 C.F.R. �1614.107(a) provides for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his capacity as an employee
or applicant for employment. 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. See 29
C.F.R. �1614.103; 29 C.F.R. �1614.106(a). The Commission's Federal sector
case precedent has long defined an �aggrieved employee� as on who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review of the record, the Commission determines that the agency
properly dismissed allegations (2), (3), (4), and (6) for failure to
state a claim. The Commission finds that appellant failed to show how
he was harmed by the alleged conduct by the agency in allegations (2),
(3), (4), and (6). These allegations of discrimination appear to have
affected another employee and not appellant. Appellant has not alleged
that he personally has suffered any job related injury for which the
agency can provide a remedy. Accordingly, the agency's dismissal of
allegations (2), (3), (4) and (6) is AFFIRMED.
Regarding allegation (5), the Commission finds that appellant has
stated a claim of discrimination affecting a condition or privilege
of employment. In allegation (5), appellant indicates that his manager
advised him on May 12, 1997 that he would be moved out of his work area.
We find that the agency's alleged conduct of moving appellant from
his work area constitutes a personal deprivation sufficient to render
appellant an aggrieved employee within the meaning of EEOC Regulations.
Thus, the agency's decision dismissing allegation (5) for failure to
state a claim was improper and is REVERSED.
Accordingly the agency's decision to dismiss allegations 2, 3, 4, and 6
is AFFIRMED. The agency's decision to dismiss allegation 5 is REVERSED.
Allegation 5 is REMANDED to the agency for further processing in
accordance with this decision and the applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (allegation 5)
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:
October 15, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations