Vinia L. Lewis, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 27, 1999
01974204 (E.E.O.C. Jan. 27, 1999)

01974204

01-27-1999

Vinia L. Lewis, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Vinia L. Lewis v. Department of the Air Force

01974204

January 27, 1999

Vinia L. Lewis, )

Appellant, )

)

v. ) Appeal No. 01974204

) Agency No. AL900970347

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

___________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated

April 24, 1997 dismissing the following portion of appellant's complaint,

as defined by the agency, for failing to state a claim:

A coworker left a note on the coworker's computer stating, "Vinia,

I have gone to the Credit Union."

Appellant had to write a letter to get her 1997 leave approved.

Appellant had to write a letter to get her leave corrected.

Appellant wrote a letter to the team coordinator requesting clarification

of the concerns.

The individual sitting in for the team coordinator seemed confused about

what the rules were.

Appellant observed a coworker going to the Credit Union without an

administrative pass.

Appellant told a coworker that appellant was going to the copier to

which the coworker replied, "I don't give a damn where you're going."

Appellant was given a periodic performance review on which the team

coordinator wrote vague concerns.

The agency accepted the following allegations for investigation:

Appellant was issued an AF 971 entry dated 6 February 1997 for

unauthorized absence from her work area, failure to request leave,

and failure to comply with a directive.

Appellant was informed that her team coordinator and two coworkers voiced

their concerns about a coworker who spends five to seven hours at the

EEO Complaint Office.

Appellant was told that she could not talk to other Item Managers except

the Managers on her team.

Appellant has not challenged the framing of the complaint. The complaint

appears to be a complaint of harassment. The Commission finds that the

dismissed portion of the complaint was properly dismissed for failing

to state a claim pursuant to 29 C.F.R. �1614.107(a). The Commission

finds that the dismissed allegations did not render appellant aggrieved

separately and are not sufficient, even when combined with the accepted

allegations, to state a claim of harassment. See Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).

The Commission specifically finds that appellant has not claimed that

her leave was not approved or corrected (regarding the allegations of

letters to the section chief) and has not challenged the agency's claim

that appellant's leave had been approved and corrected. The Commission

also finds that the periodic performance review was simply a preliminary

step to the taking of a final personnel action (the final appraisal) and

that appellant was not aggrieved by this preliminary step. Because of

our disposition we do not address whether the agency also properly

dismissed the periodic performance review allegation pursuant to 29

C.F.R. �1614.107(e).

On appeal the agency asserts that allegation 2 is properly dismissed

for failing to state a claim. The agency accepted allegation 2 in the

April 24, 1997 decision. The agency has not issued a decision with

appeal rights to the Commission dismissing allegation 2. Dismissing an

allegation in a brief on appeal denies appellant the opportunity to

appeal such a dismissal. Therefore, the Commission shall not consider

the agency's attempt to dismiss allegation 2 on appeal. If the agency

wishes to dismiss allegation 2, then it must issue a new decision and

provide appellant with appeal rights to the Commission.

The April 24, 1997 agency decision dismissing a portion of the complaint,

as defined in the April 24, 1997 decision, 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. �l6l4.604(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 27, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations