01993323
04-24-2000
Lisa Kashinsky, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lisa Kashinsky v. United States Postal Service
01993323
April 24, 2000
.
Lisa Kashinsky,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993323
Agency No. 4F-907-0047-99
DECISION
On March 22, 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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and 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 physical
disability (22% loss of limb, right shoulder), 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 [PAGE
2] 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2000
__________________
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 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.