01990756
09-24-1999
Maria Llompart, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Maria Llompart v. Department of Justice
01990756
September 24, 1999
Maria Llompart, )
Appellant, )
)
v. )
) Appeal No. 01990756
Janet Reno, ) Agency No. F-98-5143
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated September 28, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
On February 13, 1998 appellant filed a formal complaint alleging
discrimination on the basis of race (non-Black Hispanic), sex (female),
national origin (Puerto Rico), and sexual orientation. Appellant also
included marital status as a basis. The agency defined appellant's
allegations as follows:
Appellant did not receive a No-Cost Common Household Transfer;
Appellant received telephone calls and a letter demanding the return
of a document; and,
Appellant was reminded that she would be drafted to the San Juan Division
and was provided the option of transferring to San Juan or to New York,
Los Angeles, or the El Centro resident agency.
The agency dismissed allegations 2 and 3 for failure to state a claim.
Specifically, the agency found that appellant failed to allege that
a term, condition, or privilege of her employment had been affected
by the alleged events. The FAD also dismissed the basis of marital
status, stating that it is not a protected class under the applicable
EEO statutes. Allegation (1) was accepted for investigation.
On appeal appellant contends that, since 1981, Department of Justice (DOJ)
regulations have prohibited discrimination on the basis of marital status.
Appellant argues that the Commission "should require DOJ to apply the
same guidelines it uses to handle other types of discrimination claims."
With respect to the dismissal of allegations 2 and 3, appellant argues
that the phrase "terms, conditions, or privileges of employment" has
been broadly construed and therefore should encompasses her claims.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the
Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any
stage of administrative or judicial proceedings under these statutes.
With regard to the basis of marital status, we find that the agency's
dismissal was proper. Marital status is not a covered basis under the
EEO Regulations and therefore the Commission has no jurisdiction to
address this claim.
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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, appellant alleged that she received telephone calls and a letter
demanding the return of a document (allegation 2). Appellant was also
"reminded" that she would be drafted to the San Juan Division and was
given the option of transferring (allegation 3). We find that these
alleged facts are not sufficient to suggest that appellant suffered a
present harm or loss. Therefore, appellant is not an "aggrieved employee"
under 29 C.F.R. �1614.103. The agency properly dismissed allegations
2 and 3 for failure to state a claim.
CONCLUSION
Accordingly, the agency's decision dismissing the basis of marital status
and allegations 2 and 3 of appellant's complaint is hereby AFFIRMED for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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 (S0993)
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:
09/24/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations