Ramona L. Martinez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05971017 (E.E.O.C. Oct. 14, 1999)

05971017

10-14-1999

Ramona L. Martinez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ramona L. Martinez v. United States Postal Service

05971017

October 14, 1999

Ramona L. Martinez, )

Appellant, )

)

v. ) Request No. 05971017

) Appeal No. 01966172

) Agency No. 4F-950-1070-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On August 15, 1997, Ramona L. Martinez (hereinafter referred to as

appellant) initiated a request to the Equal Employment Opportunity

Commission (EEOC) to reconsider the decision in Martinez v. United States

Postal Service, EEOC Appeal No. 01966172 (July 22, 1997). EEOC Regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy,

29 C.F.R. �1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). Appellant's request is denied.

Appellant filed a formal EEO complaint on May 8, 1996 alleging that

she was discriminated against on the basis of sex (female) when the

postmaster allegedly failed to respond to her when she asked him what

action he was taking against a supervisor (S-1) who conducted an allegedly

unauthorized investigation concerning an incident between appellant and

another female employee. On August 2, 1996, the agency issued a final

agency decision (FAD) which found that appellant failed to state a claim

because she had not alleged any specific harm which resulted from the

incident. The previous decision affirmed the FAD without substantive

comment.

In order to state a claim under the Commission's regulations, appellant

must show that she is aggrieved, meaning that she suffered a direct

and personal injury 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); Gaines v. Department

of the Air Force, EEOC Request No. 05960851 (February 27, 1998).

In her request for reconsideration, appellant contends that agency

policy required that all complaints made by employees be investigated

and necessary action taken as needed. Appellant requests that

harassment against her stop. Appellant also appears to state that

the agency improperly assigned two different case numbers to the

same complaint. Here, appellant is apparently referring to another

complaint,#4F-950-1002-96, involving incidents of alleged harassment

by S-1 in September 1995 and, among other things, the agency's alleged

failure to take adequate action. A final agency decision was also issued

in this case and an appeal is currently pending before the Commission

(#01971370). In the case herein, we find that appellant failed to show

the manner in which she was aggrieved by the postmaster's alleged

failure to respond to her inquiry regarding his proposed discipline

against S-1. After a review of appellant's request for reconsideration,

the previous decision and the entire record, the Commission finds that

appellant's request does not meet the criteria of 29 C.F.R. � 1614.407(c),

and it is the decision of the Commission to deny appellant's request.

Appellant has failed to show the manner in which she was aggrieved by

the agency official's alleged action. The decision of the Commission

in Appeal No. 01966172 remains the Commission's final decision. There

is no further right of administrative appeal from the decision of the

Commission on this request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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.

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:

Oct. 14, 1999

______________ ______________________

DATE Frances M. Hart

Executive Officer

Executive Officer