Cleotilde H. Gonzales, Complainant,v.Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a02648 (E.E.O.C. Jul. 20, 2000)

01a02648

07-20-2000

Cleotilde H. Gonzales, Complainant, v. Agency.


Cleotilde H. Gonzales v. United States Postal Service

01A02648

July 20, 2000

.

Cleotilde H. Gonzales,

Complainant,

v.

Agency.

Appeal No. 01A02648

Agency No. 4-G-780-0424-99

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(1)).<1> Complainant alleged that she was discriminated

against on the basis of reprisal when:

on July 14, 1999, the Office of the United States Attorney for the

Western District of Texas filed an ethics advisory questioning the

conduct of a private attorney who has represented several members of

an organization with which complainant is affiliated.

EEOC Regulation 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 21, 1994).

In the instant matter complainant has failed to demonstrate how the

incident described in her complaint, has caused her to suffer harm with

respect to a term, privilege, or condition of her employment with the

postal service. On appeal, no persuasive arguments or evidence have been

presented regarding whether complainant has stated a claim, i.e., to show

that complainant was injured by the incident raised. Accordingly, the

agency's final decision dismissing complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 20, 2000

__________________

Date

FOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIR.

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER:

01A02648

AGENCY NUMBER:

4-G-780-0424-99

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY):

Sabrina R. Lewis

July 13, 2000

(SUPERVISOR:

Joel Cavicchia

(DIVISION DIRECTOR):

1.) (COMPLAINANT(S)

Cleotilde H. Gonzales

2.) (AGENCY)

United States Postal Service

3.) (DECISION)

Affirmed

4.) (STATUTE(S)

Title VII.

5.) (BASIS(ES)

OR

6.) (ISSUE(S)

O1

7.) (TYPIST/DATE/DISK)

SL1/ July 13, 2000

SPELL CHECK:

YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

X 4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 3L - OFO VACATED/REMANDED ALL OF

AGENCY'S MERITS DECISION

? 4Q - COMPLIANCE REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

? 3R - RETURN TO AG FOR CONSOLIDATION

? 3S - RETURN TO AJ FOR CONSOLIDATION

? 7N - CIVIL ACTION FILED

REVISED AS OF 2/3/00

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.