Gloria M. Huizan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01993334 (E.E.O.C. Mar. 17, 2000)

01993334

03-17-2000

Gloria M. Huizan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gloria M. Huizan, )

Complainant, )

)

v. ) Appeal No. 01993334

) Agency No. 4F-907-0050-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On March 16, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

February 25, 1999, pertaining to her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Section

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq.<1> In her complaint, complainant alleged that she was subjected to

discrimination on the bases of age (DOB: 9/13/44), physical disability

(cervical, shoulder and lumbar sprain), and reprisal (prior EEO activity)

when on August 26, 1998 she received a letter advising her that her

rehabilitation job assignment would be changed.

The agency dismissed complainant's complaint pursuant to Volume

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �

1614.107(a)(5)), for alleging a proposal to take a personnel action, or

other preliminary step to taking a personnel action is discriminatory.

Specifically, the agency found that the agency's letter of August 26,

1998, was merely a proposal to change complainant's job assignment.

The FAD indicated that to date, complainant's job assignment has not

been changed.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that the

agency shall dismiss a complaint that alleges that a proposal to take a

personnel action, or other preliminary step to taking a personnel action,

is discriminatory. Here, complainant has presented no evidence that

she has been harmed at all by the agency's letter of August 26, 1998.

The letter simply requested updated medical information from complainant

regarding her medical restrictions. Complainant continues to occupy

her rehabilitation assignment position with the agency. Complainant has

failed to present persuasive evidence that she has been aggrieved by the

agency's proposed action. In that regard, we find that the agency's

decision dismissing complainant's complaint was proper. The agency's

decision is AFFIRMED for the reasons set forth herein.

Because we affirm the agency's decision to dismiss the complaint for

the reason stated herein, we find it unnecessary to address the agency's

decision to dismiss the complaint on alternative grounds.

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:

March 17, 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 Assistant1On 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.