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