01983210
01-27-1999
Alicia R. Dever, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alicia R. Dever v. United States Postal Service
01983210
January 27, 1999
Alicia R. Dever, )
Appellant, )
)
v. ) Appeal No. 01983210
) Agency No. 1-H-321-0019-98
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 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. The final agency decision was received by
appellant on February 17, 1998. The appeal was received March 13, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on November 12, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when (1) on October 8, 1997 she was denied leave
without pay; (2) between October 12, 1997 and October 23, 1997 she was
not given a route and was forced to "black wax" for approximately seven
to ten days; and (3) on October 15, 1997, she was given thirty minutes to
complete an EEO interrogatory. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on January 2, 1998, appellant
filed a formal complaint alleging that she was the victim of unlawful
employment discrimination on the basis of reprisal (prior EEO activity).
On February 11, 1998, the agency issued a final decision accepting
for investigation allegations (1) and (2) of appellant's complaint but
dismissing allegation (3) for failure to state a claim. Specifically,
the agency determined that with respect to allegation (3), appellant
failed to demonstrate that she suffered a personal harm with respect to
a term or condition of her employment.
ANALYSIS AND FINDINGS
In order to state a claim under the EEOC Regulations set forth at 29
C.F.R. Part 1614, a complainant must demonstrate that he is "aggrieved."
See Hobson v. Department of the Navy, EEOC Request No. 05890113
(March 2, 1990). EEOC Regulation 29 C.F.R. �1614.103(a) provides for
the acceptance of complaints from aggrieved employees or applicants
who allege that they have been discriminated against because of race,
color, religion, sex, national origin, age, disability or retaliation.
In Odoski v. Department of Energy, EEOC Appeal No. 01901496 (April 16,
1990), the Commission stated that:
The only proper question under the purview issue is whether the complaint
alleges employment discrimination on a basis covered by the EEO statutes
(race, color, sex, national origin, age, [religion, disability]
or reprisal for prior EEO activities). If the answer is yes then the
agency must accept the complaint for processing regardless of what it
may think of its merits.
The gravamen of appellant's complaint is that she was subjected to
unlawful reprisal discrimination on the part of the agency as a result of
appellant's engaging in prior protected activity. Specifically at issue
in the instant appeal, appellant alleged that her supervisor retaliated
against her when he denied her a reasonable amount of official time in
which to complete an EEO interrogatory relevant to her discrimination
complaint. Upon review, the Commission determines that allegation (3)
of appellant's complaint was properly dismissed. Appellant failed to
establish that she suffered a personal harm by being granted 30 minutes
of official time.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint for failure to state a claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
January 27, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations