Cleotide Gonzales, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 28, 2000
01981322 (E.E.O.C. Jan. 28, 2000)

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.