Ronald G. Zalucky, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01985864_r (E.E.O.C. Sep. 7, 1999)

01985864_r

09-07-1999

Ronald G. Zalucky, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald G. Zalucky, )

Appellant, )

)

v. ) Appeal No. 01985864

) Agency No. 1B-121-0015-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Based on a review of the record, the Commission finds that appellant's

complaint was properly dismissed pursuant to EEOC Regulation 29 C.F.R.

�1614.107(a) for failure to state a claim. In his complaint, appellant

alleged that he was discriminated against when, in February 1998,

his Supervisor informed him that a female co-worker charged him with

sexual harassment.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of

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 capacity

as an employee or applicant for employment. 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 notes that an agency is legally obligated to investigate

a claim of sexual harassment. See Rogers v. Department of Defense, EEOC

Request No. 05940157 (February 24, 1995). To allow an employee to file a

complaint regarding such investigations could have a chilling effect on

the filing of sexual harassment charges, as well as the agency's prompt

response to such charges. See Blinco v. Department of the Treasury,

EEOC Request No. 05940194 (May 25, 1994). Accordingly, the final agency

decision dismissing appellant's complaint for failure to state a claim

was proper and is AFFIRMED.<1>

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:

Sept. 7, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1Because the

Commission affirms the agency's decision

to dismiss appellant's complaint for the

reason stated herein, the Commission finds it

unnecessary to address the agency's decision

to dismiss the complaint on alternative grounds.