Gladys A. Zimmerle, Appellant, William J. Henderson, 1-G-2013-93 Postmaster General, States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
05970783 (E.E.O.C. Nov. 5, 1999)

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.