Shirley A. Salazar, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 1999
01987011 (E.E.O.C. Sep. 13, 1999)

01987011

09-13-1999

Shirley A. Salazar, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Shirley A. Salazar v. United States Postal Service

01987011

September 13, 1999

Shirley A. Salazar, )

Appellant, )

)

v. )

) Appeal No. 01987011

William J. Henderson, ) Agency No. 1-K-221-0070-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On September 28, 1998, appellant filed a timely appeal with this

Commission from a final agency decision (FAD), dated August 14, 1998,

which the agency issued pursuant to 29 C.F.R. �1614.107(a) and (b).

The Commission accepts the appellant's appeal in accordance with EEOC

Order No. 960, as amended.

On May 7, 1998 appellant contacted the EEO office regarding allegations

of discrimination based on sex (female) and retaliation. Specifically,

appellant alleged she was discriminated against when: on February 11,

1998 to the present, management deliberately denied her access to her

labor relations files under the Freedom of Information Act (FOIA).

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on June 30, 1998, appellant filed a formal complaint.

The agency dismissed appellant's complaint for untimely counselor contact

and for failure to state a claim. Specifically, the agency stated that

appellant's contact was eighty-five (85) days after the alleged event,

well beyond the time limitation. The FAD also determined that appellant

had not provided evidence that she suffered a "personal loss or harm

with respect to a term, condition or privilege of employment." Further,

the agency noted that FOIA requests are outside the purview of Title

VII and EEOC Regulations.

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).

In the instant case, appellant alleged that the agency denied her access

to her labor relations files under FOIA. The Commission has held that

it does not have jurisdiction over the processing of FOIA requests.

Instead, persons having a dispute regarding such requests should bring

any appeals about the processing of his or her FOIA requests under the

appropriate FOIA regulations. Gaines v. Department of the Navy, EEOC

Request No. 05970386 (June 12, 1997). Therefore, appellant's complaint

fails to state a claim within the purview of the EEOC regulations at 29

C.F.R. �1614. Because of our disposition we do not consider whether the

complaint was properly dismissed by the agency for untimely counselor

contact.

The agency's decision dismissing appellant's complaint is hereby

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