01983313
01-07-1999
Shirley A. Temple, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shirley A. Temple v. United States Postal Service
01983313
January 7, 1999
Shirley A. Temple, )
Appellant, )
)
v. ) Appeal No. 01983313
) Agency No. 4-C-440-0095-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 10, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged that based on her sex, age, and physical disability,
and in retaliation for her prior EEO activity, the agency did not allow
her to have representation at an EEO meeting and she did not get a
close-out interview.
The agency dismissed the appellant's complaint for failure to state a
claim of employment discrimination.
On appeal, the appellant contends that the agency did not have the right
to dismiss her complaint because she alleged discrimination based on
her sex, age, disability, and retaliation.
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved
due to an unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et
seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,
as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &
Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because
Title VII's prohibition of discrimination with respect to an employee's
"terms, conditions, or privileges of employment" includes benefits that
are part of an employment contract and benefits which an employer chooses,
but is not required, to provide its employees).
The question as to whether a complainant is allegedly aggrieved due to
an unlawful employment practice for which there is a remedy under the
Federal equal employment statutes, of necessity, requires a consideration
of whether the complainant has alleged unlawful discrimination regarding
hiring, termination, compensation, or other terms, conditions, or
privileges of employment. Cobb, supra. Even where a complaint does not
challenge an agency action or inaction regarding hiring, termination,
compensation or any other specific term, condition, or privilege of
employment, the complaint may still state a claim if the complaint
allegations are sufficient to state a hostile or abusive environment
claim. Id., citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment).
The appellant's complaint concerns the agency's treatment of her in
the EEO process, not in the terms, conditions, or privileges of her
employment. Accordingly, the Commission finds that the appellant's
complaint does not state a claim of employment discrimination.
If the appellant is not satisfied with the way in which she has been
treated in the EEO process, she should contact the agency official in
charge of the EEO process with her concerns.
If the alleged mistreatment has adversely affected the processing
of a complaint, the appellant should also raise her concerns during
the processing of that complaint by informing the investigator, the
administrative judge, and the Office of Federal Operations if an appeal is
filed from a final agency decision on that complaint. Raising claims of
improper processing in violation of EEOC regulations or orders during the
processing of a complaint provides the agency an opportunity to correct
any deficiencies. Mount v. Department of the Air Force, EEOC Request
No. 05930931 (June 2, 1994). Raising such claims on appeal provides
the Commission an opportunity to correct harmful error. Id. Thereby,
a complainant may ensure that his or her concerns are addressed when
they can be remedied, either by the agency or by the Commission. Id.
Raising improper processing concerns during the processing of the
complaint also furthers the goal of administrative economy. Id.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's January 28, 1998 complaint.
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:
January 7, 1999
Date Ronnie Blumenthal, Director
Office of Federal Operations