Osvaldo Estevez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01987026 (E.E.O.C. Sep. 13, 1999)

01987026

09-13-1999

Osvaldo Estevez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Osvaldo Estevez v. United States Postal Service

01987026

September 13, 1999

Osvaldo Estevez, )

Appellant, )

)

v. )

) Appeal No. 01987026

William J. Henderson, ) Agency No. 4-H-330-0221-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The appellant filed a timely appeal with this Commission from a final

agency decision (FAD), dated August 24, 1998, which the agency issued

pursuant to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission

accepts appellant's appeal in accordance with EEOC Order No. 960,

as amended.

The appellant alleged that he was discriminated against on the bases of

national origin (Hispanic) and retaliation (prior EEO activity) when:

1) on January 24, 1998 appellant was instructed to clock out after

returning early to the office; and, 2) on January 29, 1998, appellant was

discriminated against and threatened when he was given a predisciplinary

discussion for performance.

The agency dismissed allegation 2 for failure to state a claim.

Specifically, the FAD stated that there was no evidence that appellant

suffered harm as a result of the discussion. The agency indicated

that appellant suffered no monetary loss, no discipline was issued,

and no changes in wages or hours resulted. Further, the FAD noted

that pursuant to Article 16, Section 2 of the National Agreement,

management could discuss minor offenses with an employee and that no

notation pertaining to such a discussion could be kept in the employee's

official personnel folder. Allegation 1 was accepted for investigation.

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).

The Commission has consistently held that official discussions, unless

documented, do not constitute a sufficient injury in fact to make an

employee aggrieved under Title VII. See Clifton v. U.S. Postal Service,

EEOC Request No. 05930326 (March 24, 1994). In this case, there is

nothing which suggests that the discussion in question was documented, nor

has appellant identified how he has suffered harm to a term, condition,

or privilege of employment as a result of the discussion.

Accordingly, the agency's decision to dismiss allegation 2 of appellant's

complaint for failure to state a claim is AFFIRMED.

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:

September 13, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations