Virginia Rosas, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01994758 (E.E.O.C. Oct. 5, 1999)

01994758

10-05-1999

Virginia Rosas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Virginia Rosas, )

Appellant, )

)

v. ) Appeal No. 01994758

) Agency No. 4-G-780-0177-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On May 8, 1999, appellant filed a timely appeal with this Commission from

a final agency decision (FAD) issued on April 16, 1999, pertaining to a

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

Commission accepts appellant's appeal in accordance with EEOC No. 960,

as amended.<1>

The record reflects that appellant initiated contact with an EEO

Counselor on April 3, 1997. During the counseling period, appellant

alleged that on March 17, 1997 she learned that two of her co-workers

wrote negative letters concerning her workers compensation claim and

said letters appeared in both her personnel file as well as her workers

compensation file.

On August 23, 1997, appellant filed a formal compliant alleging that

she was the victim of unlawful employment discrimination on

the basis of reprisal. Appellant's complaint was comprised of the

matters on which she underwent EEO counseling, discussed above.

On November 19, 1997, the agency issued a final decision dismissing the

aforementioned complaint because appellant failed to accept what the

agency believed to be �full relief�. In response,

appellant appealed to this office on or about December 5, 1997.

On appeal, the Commission reversed the agency's decision to dismiss

appellant's complaint for failure to accept their offer of full relief

and remanded the case back to the agency for further processing.

On April 16, 1999, the agency issued a final decision dismissing

appellant's complaint pursuant to 29 C.F.R. �1614.107(a), for failure

to state a claim. Hence, the current appeal ensued.

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 only proper questions in determining whether an allegation is

within the purview of the EEO process are: (1) Whether the complainant

is an aggrieved employee and (2) Whether he has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if he has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). Here, appellant alleged that her supervisor solicited

two employees to write negative letters about appellant's workers

compensation claim and that said

letters were found in her personnel file and her workers compensation

file. Appellant's allegations are sufficient to render her an �aggrieved

employee�. Furthermore, since appellant has alleged that the adverse

action was based on reprisal, appellant has raised an allegation within

the purview of the EEOC regulations.

Accordingly, the agency's decision to dismiss appellant's complaint

for failure to state a claim was improper and is REVERSED. Appellant's

complaint is REMANDED to the agency for further processing in accordance

with this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. The agency's report must contain

supporting documentation, and the agency must send a copy of all

submissions to the appellant. If the agency does not comply with the

Commission's order, the appellant may petition the Commission for

enforcement of the order. 29 C.F.R. �1614.503 (a). The appellant

also has the right to file a civil action to enforce compliance with

the Commission's order prior to or following an administrative petition

for enforcement. See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g).

Alternatively, the appellant has the right to file a civil action on the

underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. �2000e-16(c)

(Supp. V 1993). If the appellant files a civil action, the administrative

processing of the complaint, including any petition for enforcement,

will be terminated. See 29 C.F.R. �1614.410.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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:

October 5, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1Since the agency did not supply a copy of a certified mail

return receipt or any other material capable of establishing

the date appellant received the agency's final decision, the

Commission presumes that appellant's appeal was filed within

thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.