01a10137
02-27-2001
Janice Hsueh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area), Agency.
Janice Hsueh v. United States Postal Service
01A10137
February 27, 2001
.
Janice Hsueh,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01A10137
Agency No. 1K-221-0055-99
Hearing No. 100-AO-7592X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against on the bases of race
(Asian), national origin (Chinese), and sex (female), when on May 4, 1999,
she was given a Letter of Warning for Unsatisfactory Performance/Failure
to Follow Instructions on April 23, 1999. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final action.
The record reveals that during the relevant time, complainant was
employed as a PS-05 Clerk at the agency's Merrifield, Virginia, facility.
The record further reflects that following receipt of the Letter of
Warning, complainant filed a union grievance resulting in a settlement
agreement providing for the removal of the Letter of Warning from
complainant's records and files and reduced the matter to an Official
Discussion. Complainant filed a formal EEO complaint with the agency
on July 26, 1999, alleging that the agency had discriminated against
her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, dismissing complainant's allegation.
The AJ initially stated that she ordered complainant to inform her what
remedies she sought from the Commission, as the union grievance reduced
the matter to an Official Discussion and provided that the settlement
agreement would not be used in any other grievance or disciplinary
action, and as complainant did not request compensatory damages.
Complainant responded, stating that she wanted to be treated with
dignity and respect, freedom from retaliation and the assurance that her
supervisor would be informed of her settlement agreement. The AJ found
that as the subject of complainant's complaint, the Letter of Warning,
had been removed from her records, there was no personnel action in
dispute and no remedy remaining which could be granted by the Commission.
The AJ further found that a Letter of Warning changed to a Discussion
no longer constituted a disciplinary action, and complainant has not
shown that she is disadvantaged in the terms, conditions or privileges
of employment by receiving a discussion. The AJ concluded that as the
discussion was not in itself a disciplinary action, complainant was no
longer aggrieved, and her allegation regarding the Letter of Warning was
rendered moot and dismissed.<2> The agency's final order implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final action.
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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;
� 1614.106(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. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Regarding complainant's allegation, we
note that the Commission has previously held that a Letter of Warning
reduced to a Discussion no longer constitutes a disciplinary action and
thus complainant
is not an aggrieved employee. Yeats v. United States Postal Service,
EEOC Request No. 05940605 (October 27, 1994). As a result, complainant
has not stated a claim and her complaint was properly dismissed under
29 C.F.R. � 1614.107(a)(5).
Accordingly, the agency's final action dismissing complainant's claim
is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION(M0900)
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 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 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 (S0900)
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, Director
Office of Federal Operations
February 27, 2001
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The AJ further found that if complainant's allegations were considered
on the merits, the agency would nevertheless be entitled to summary
judgment, as she failed to present any evidence that she was singled
out for discipline due to her protected classes and that the Letter of
Warning was a pretext for discrimination. AJ's Decision, at 4.