01986505_r
10-22-1999
Mary J. Neal, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Mary J. Neal, )
Appellant, )
)
v. ) Appeal No. 01986505
) Agency No. 5-98-5122
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On August 25, 1998, appellant filed a timely appeal of a final agency
decision, which was dated July 23, 1998, dismissing her complaint,
pursuant to 29 C.F.R. ��1614.107(a) and (b), for failure to state a
claim and/or due to untimely EEO Counselor contact.<1>
In her June 11, 1998 formal complaint, appellant alleged discrimination
in reprisal for expressing an opinion that disagreed with a grievance
decision made by management officials. Specifically, appellant
alleged that for the past 16 months, she was subjected to a hostile work
environment concerning working conditions, promotions, and a disciplinary
action which occurred from January 1997 to June 1998.
In its final decision, the agency stated that in a telephone conversation
of July 22, 1998, appellant clarified that she had not previously
filed an EEO complaint nor had she participated in any other type of
EEO related activity. Appellant also indicated that no other basis
was appropriate for her complaint, and that she strongly believed the
discrimination was because she expressed her opinion via e-mail on a
grievance decision made by management. Thus, the agency found that the
complaint failed to state a claim. The agency also dismissed several
allegations due to untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .106(a).
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, the Age Discrimination in Employment Act, the Equal Pay Act, or the
Rehabilitation Act, or for participating in any stage of administrative
or judicial proceedings under those statues.
In her complaint, appellant alleged discrimination on the basis of
reprisal for expressing her opinion via e-mail on a grievance decision
made by management. The record indicates that appellant sent the e-mail
at issue on January 17, 1997, to an Labor Relations Specialist, disputing
management's decision granting a grievance which was filed by an agency
employee concerning his decertification for failure to locate a lost
pilot. There is no indication in the record that this grievance involved
any issue of discrimination nor is there any indication that appellant
raised any allegations of discrimination in the January 17, 1997 e-mail.
The grievance and the e-mail at issue solely concern the grievance matter,
and not an EEO matter. Furthermore, there is no evidence in the record
that the complaint was based on reprisal for opposing any practice
made unlawful by Title VII, the Age Discrimination in Employment Act,
the Equal Pay Act, or the Rehabilitation Act, or for participating in
any stage of administrative or judicial proceedings under those statues.
Accordingly, the agency's final decision is hereby AFFIRMED.<2>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. 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 (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:
October 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency has failed
to fulfill its obligation to transmit its final decision by a method
enabling the agency to show the date of receipt, the Commission presumes
that appellant's appeal was filed within thirty (30) days of receipt of
the agency's final decision. See, 29 C.F.R. �1614.402.
2Although the agency also dismissed several allegations on the alternative
grounds due to untimely EEO Counselor contact, we need not discuss those
alternative grounds since the dismissal of those allegations is affirmed
for failure to state a claim.