01980087
04-02-1999
Shazadi A. Malik, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shazadi A. Malik v. United States Postal Service
01980087
April 2, 1999
Shazadi A. Malik, )
Appellant, )
)
v. ) Appeal No. 01980087
) Agency No. 1-K-221-0153-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on September 17, 1997. The appeal was postmarked September
18, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on July 9, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when (1) on June 18, 1997 she became aware
that an EEO official had violated her rights under MD-110, Chapter 4,
sec. III, Processing of Partially Dismissed complaints; (2) an EEO
official engaged in a chain conspiracy to deny appellant due process
of law. In allegation (3) of appellant's complaint, she requests that
the agency EEO office hire an investigator to complete the investigation
into two prior complaints filed by her. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on August 6, 1997,
appellant filed a formal complaint alleging that she was the victim
of unlawful employment discrimination on the bases of race (unspecified),
color (unspecified), national origin (unspecified), sex (female) and
reprisal (prior EEO activity).
On September 9, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically, the
agency determined that appellant had not been harmed in terms of a term,
condition, or privilege of employment.
ANALYSIS AND FINDINGS
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 finds that the agency's
September 9, 1997 decision dismissing appellant's complaint on the basis
of failure to state a claim is proper pursuant to the provisions of 29
C.F.R. �1614.107(a).
The record shows that appellant alleged that she had been discriminated
against on the basis of race, color, national origin, sex and reprisal for
prior activity when the agency investigated her prior EEO complaints in an
improper manner. Appellant specifically alleged that the agency engaged
in a chain conspiracy to deny her due process of law. Appellant further
alleged that the agency violated EEOC Management Directive 110 (MD-110)
(October 22, 1992) in its investigation of her prior complaints.
A review of the record shows that appellant is stating her dissatisfaction
with the processing of her prior complaints and has therefore, failed to
state a claim within the provisions of EEOC Regulations. See Steeves. v.
Department of the Navy, EEOC Appeal No. 01956381 (May 14, 1996).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint for
failure to state a claim is hereby AFFIRMED for the reasons set forth
herein.
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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations