05970783
11-05-1999
Gladys A. Zimmerle, Appellant, William J. Henderson, 1-G-2013-93 Postmaster General, States Postal Service, Agency.
Gladys A. Zimmerle, )
Appellant, )
) Request No. 05970783 v. ) Appeal No. 01950612
) Agency Nos. 3-U-1038-92
William J. Henderson, )
1-G-2013-93 Postmaster General,
) United
States Postal Service, )
Agency. )
)
DECISION TO RECONSIDER
On May 21, 1997, the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Zimmerle v. United States Postal Service, EEOC Appeal
No. 01950612 (April 25, 1997). EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of such
exceptional nature as to have substantial precedential implications, 29
C.F.R. �1614.407(c)(3). The appellant's request to reconsider is denied.
The Commission on its own motion, however, reconsider's the previous
decision in part.
The issues presented are (1) whether the appellant's request met the
criteria for reconsideration regarding claim 3-U-1038-92, and (2) whether
the Commission, on its own motion, should reconsider the previous decision
regarding complaint 1-G-2013-93 because it did not address the substance
of that complaint.
The previous decision discussed how complaint 3-U-1038-92 was processed
as well as the substance of that complaint. We will not repeat the
discussion herein.<1> Complaint 3-U-1038-92 was consolidated with
another complaint, 91-III-9-33. The previous decision inadvertently
indicated that complaint 3-U-1038-92 included complaint 1-G-2013-93.
Complaint 1-G-2013-93 was, in fact, addressed in a separate FAD, and
the Commission, on its own motion, addresses it here.
As a preliminary matter, the appellant does not specifically address
any of the pertinent findings of the previous decision in her request
for reconsideration. Her request fails to meet the criteria for
reconsideration and is denied.
We now turn to complaint 1-G-2013-93. The record reflects that
on September 27, 1994, the agency issued a FAD on this complaint,
which it mailed to the appellant. The appellant's appeal of October
29, 1994 opposed this FAD as well as that of complaint 3-U-1038-92.
As the record does not show when the appellant received the FAD on
complaint 1-G-2013-93, we deem the appeal on that FAD to be timely.
The Commission, on its own motion, reconsiders the previous decision to
address the substance of complaint 1-G-2013-93.
This complaint regards the appellant's allegation that she was
discriminated against on the bases of her sex (female), national origin
(Mexican-American), reprisal (EEO activity) and mental disability when
on January 30, 1993, she was informed by a supervisor that an Employee
Assistance Program (EAP) appointment had been scheduled for her and the
supervisor asked the appellant why she yelled at another employee.
The appellant alleged that previously, on January 27, 1993, she was
subjected to a hostile working environment created by a co-worker's
obnoxious conduct. She filed a separate EEO complaint regarding the
matter. At the appellant's request, the agency processed the complaint
regarding the supervisor asking her why she yelled separately, i.e.,
apparently complaint 1-G-2013-93. The agency issued a FAD on the hostile
environment complaint finding no discrimination, which the appellant
appealed to the Commission. In Zimmerle v. United States Postal Service,
EEOC Appeal No. 01950019 (April 25, 1997), the Commission found that
it appeared the co-worker was merely doing his job, albeit a little
too loudly for the appellant, and this did not constitute harassment.
The appellant did not request the Commission to reconsider this decision.
The instant FAD regarding the January 30, 1993 incident found that after
the appellant said to her supervisor that she could not keep the EAP
appointment, she was not required to go to it, and that no action was
taken against her. The appellant did not contest this on appeal.
An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that she has been discriminated
against by that agency because of race, color, religion, sex,
national origin, age, disabling condition or reprisal (EEO activity).
29 C.F.R. �1614.103 and .106(a). An aggrieved employee is 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).
Complaint 1-G-2013-93 fails to state a claim. The voluntary referral
of the appellant for EAP did not affect the terms and conditions of
the appellant's employment, and hence did not render her aggrieved.
Phillips v. United States Postal Service, EEOC Request No. 05880558
(October 27, 1988). Further, the supervisor asking the appellant why
she yelled at her co-worker, without any related concrete action did not
constitute a direct and personal deprivation sufficient to render the
appellant aggrieved. Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). Accordingly, complaint 1-G-2013-93 is
dismissed for failure to state a claim.
The order from the previous decision is incorporated below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which shall
include the following actions: the agency shall fully investigate the
issue of whether appellant is a "qualified individual with a disability,"
including whether there is a sufficient nexus between the absences
that were the basis of the suspensions and appellant's disability. The
agency shall further investigate whether it would be an undue burden to
accommodate appellant's disability.
Thereafter, the agency shall issue a final decision, based upon the
evidence of record as it now exists and the supplemental evidence. 29
C.F.R. � 1614.110. The supplemental investigation and issuance of the
final decision must be completed within ninety (90) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted 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)<2>
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 (Q0993)
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. 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:
Nov. 5, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations1The appellant's
appeal was from the agency's most recent
final agency decision (FAD) on this claim.
The FAD only addressed a notice of seven day
suspension issued to the appellant in April
1991. As discussed in the previous decision,
this claim also regarded the issues of a 14
day suspension, hostile work environment, and
reasonable accommodation, which were addressed
in the previous decision. The reasonable
accommodation matter was remanded to the agency
for further processing.
2These reconsideration rights only apply to complaint 1-G-2013-93.
The Commission is providing these reconsideration rights because this
is our first decision which addressed the appellant's appeal from the
FAD on complaint 1-G-2013-93. Either party may request reconsideration.