01985206
09-07-1999
Sonja V. Hrobowski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sonja V. Hrobowski v. United States Postal Service
01985206
September 7, 1999
Sonja V. Hrobowski, )
Appellant, )
) Appeal No. 01985206
v. ) Agency No. 4-J-600-0178-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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., and �501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The FAD was dated
May 21, 1998. The appeal was postmarked on June 19, 1998. The timely
appeal is, therefore, accepted in accordance with EEOC Order No. 960.001,
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 filed a formal complaint on March 5, 1998, alleging
discrimination on the basis of retaliation (prior EEO activity) and
disability (not cited), when on January 30, 1998, she received a letter
from the Manager, Human Resources, addressing her concerns regarding
the processing of four EEO cases. Complainant alleges that the Manager,
Human Resources and the EEO District Office failed to fairly and throughly
investigate the above complaints.
In its FAD, the agency dismissed the complaint for failure to state
a claim. The agency asserted that appellant should raise the improper
processing of her EEO complaints in the context of those complaints,
rather than as a separate complaint. This appeal followed.
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).
In her formal complaint, appellant alleged that there were problems
with the way that the agency handled her four previous EEO complaints.
This allegation concerns difficulties that appellant experienced with
the processing of previously filed EEO complaints.
The guidance concerning an allegation of improper processing requires
that the agency refer a pending complaint to the agency officials
responsible for the quality of complaint processing, and that those
individuals earnestly attempt to resolve dissatisfaction with the
complaints process as early as possible. See EEOC Management Directive
(MD) 110, at 4-8. EEO MD-110 provides that the agency must process only
those complaints in which the individual alleges that she was treated
differently, or is being adversely affected by the policy or practice
having a discriminatory effect on the processing of her complaint. Id.
We agree with the agency that appellant does not state a claim because
the instant complaint does not assert that she was treated differently or
is being adversely affected. It merely asserts that she was dissatisfied
with way in which the agency processed her previous four EEO complaints.
We advise appellant to contact the agency's EEO Director regarding
her concerns with the processing of her previous four EEO complaints,
complaints 4-J-600-0197-97, 1-J-601-0011-97, 1-J-601-1079-96, and
1-J-531-1096-96. Appellant may also bring those concerns up as part of
the processing of the underlying complaints.
CONCLUSION
Accordingly, the decision of the agency was proper and is 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. 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:
September 7, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations