01a53518
08-10-2005
Sabrena Castro, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Sabrena Castro v. Department of the Air Force
01A53518
08-10-05
.
Sabrena Castro,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A53518
Agency No. 8Z0J04068
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 24, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior EEO activity when she did not vote
in the July 8, 2004 union election.
The agency dismissed complainant's claim for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency found that complainant
is not an aggrieved person because she did not suffer any harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. The agency also found that since complainant was
on administrative leave, and was not engaged in any official capacity
at the time of the election, her employment status was not affected.
The agency also noted that her complaint concerns union matters and,
therefore, it was inappropriate to process the compliant as an EEO claim
of discrimination.
On appeal complainant raises the same contentions as below, and
in addition argues that she is an aggrieved employee because as a
dues-paying union member she has the right to vote in union elections.
Complainant also claims that she has suffered from stress, and her
reputation has been tarnished as a result. The agency asks for its
final decision to be upheld.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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, disabling condition, or in reprisal.
29 C.F.R. �� 1614.103 & .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. Dep't of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The Commission has held that, except in limited circumstances, the
EEO process is not a mechanism to attack internal union matters or
proceedings, and such claims may be dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).<1> See Burton v. Dep't of the Navy, EEOC Request
No. 05950515 (September 19, 1996). We find that there is no evidence
that complainant suffered any personal loss or harm that affected a term,
condition, or privilege to her employment when she failed to vote in
the union election. Thus, we find that the agency properly dismissed
the claim pursuant to 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___08-10-05_______________
Date
1It appears that complainant may be alleging breach of settlement.
Complainant alleges that agency officials disclosed to the union
president the terms of the negotiated settlement, and as a result she
did not vote in the election. We do not address a possible breach of
settlement claim because the record contains insufficient evidence.
Complainant must first raise any violation of a settlement agreement
with the agency's EEO Director. 29 C.F.R. � 1614.504(a).