01981322
01-28-2000
Cleotide Gonzales, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cleotide Gonzales v. United States Postal Service
01981322
January 28, 2000
Cleotide Gonzales, )
Complainant, )
)
v. )
) Appeal No. 01981322
William J. Henderson, ) Agency No. 4-G-780-0231-97
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 1, 1997, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 30, 1997,
dismissing her complaint on the grounds that it was untimely filed
and failed to state a claim.<1> The Commission accepts the appeal in
accordance with EEOC Order No. 960, as amended.
Complainant contacted the EEO office regarding claims of unlawful
employment discrimination based on her sex. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on September 20,
1997, complainant filed a formal complaint.
The agency framed complainant's claim as follows:
Complainant became aware on June 3, 1997, during a Sexual Harassment
Training session that defamation of character is classified as sexual
harassment and that she was subjected to such on January 10, 1994, when
the APWU President engaged in a letter writing campaign to defame her
character and management did nothing to correct the situation.
The agency issued a FAD dismissing the complaint on the grounds that
it was untimely filed and failed to state a claim. Specifically, the
agency indicated that complainant's claim involved remarks made by the
APWU President and that remarks or comments without concrete action fail
to render complainant an aggrieved individual. The FAD also indicated
that complainant received her final interview on September 4, 1997 but
did not file her complaint until September 20, 1997.
On appeal, complainant contends that her complaint was timely filed and
that the alleged incidents are beyond "stray remarks". Complainant
provides a certified mail receipt reflecting that her complaint
was mailed on September 19, 1997. Regarding her claims, complainant
attests that after the letter was distributed she was removed from her
permanent position and reassigned temporarily to a lower-level position
in a different office. She also argues that as a result of the letters
she was prevented from moving upward and her performance was constantly
scrutinized.
In response, the agency argues that complainant is familiar with the
issue of sexual harassment and the EEO process. Further, the agency
contends that "an allegation that concerns an action of defamation of
character is not a claim of employment discrimination" and is beyond
the scope of the EEO process.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint 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, .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
22, 1994).
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995).
According to the FAD, complainant contends she was discriminated against
when on January 10, 1994 the APWU President wrote a disparaging letter
about her and distributed copies to management. We find that the January
10, 1994 letter does not render complainant an "aggrieved" employee.
Although her complaint refers to additional letters and pictures which
were distributed "throughout 1994", the record reflects that complainant
only requested and received counseling on the January 10, 1994 incident.
Further, we note that complainant states for the first time on appeal
that she was transferred, denied promotions and constantly scrutinized
as a result of the President's letters. Complainant is advised that if
she wishes to pursue, through the EEO process, these additional claims
she raised for the first time on appeal, that she initiate contact with
an EEO Counselor. Consequently, we find complainant's claim regarding
the January 10, 1994 letter fails to state a claim.
Because of our disposition we do not consider whether the complaint was
properly dismissed as untimely filed.
Acordingly, the agency's dismissal of the complaint for failure to state
a claim was proper and is AFFIRMED.
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:
January 28, 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 Assistant
1On 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.