01a02532
03-20-2001
Virginia Rosas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Virginia Rosas v. United States Postal Service
01A02532
March 20, 2001
.
Virginia Rosas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02532
Agency No. 4-G-780-0405-99
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final decision dated March 4, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and reprisal (prior EEO activity) when, on
July 14, 1999, the Office of the United States Attorney for the Western
District of Texas filed an ethics advisory questioning the conduct
of a private attorney who represented several members of the National
Organization of Women (NOW) with which complainant is affiliated.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. 1614.107 (a) (1), for failure to state a claim. Specifically,
the agency argued that complaint failed to indicate how she suffered any
personal loss or harm with regard to a term, condition or privilege of
employment, due to actions taken against a private attorney. The agency
argued that complainant has no standing since she has no personal or
tangible interest in actions taken against the attorney. The agency also
held that the complaint was a �spin-off�, that complainant has no standing
and that complainant was abusing the EEO process by filing the complaint.
The agency also argued that the complaint involves a private attorney, who
is not a postal employee, and thus is not covered by the federal sector
EEO complaint process. Further, the agency asserted that the complaint
did not involve a term or condition of complainant's employment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
Here, complainant contends that she was discriminated against when
the Postal Service and the U.S. Attorney's Office, Western District of
Texas, charged an attorney who represented complainant on several EEO
complaints, with unethical conduct in a case that involved complainant's
co-worker. Complainant alleged that she suffered the loss of the
attorney's representation because of these threatening and intimidating
tactics. Complainant further alleges that the agency denied employees'
representation and the right of due process. This is not sufficient
to establishes that complainant suffered a harm or loss with respect
to a term, condition or privilege of employment. Because we find that
the complaint fails to state a claim, we will not address the agency's
alternative grounds for dismissal.
Accordingly, after careful review of the entire record, we AFFIRM the
agency's dismissal of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
_____________________
Carlton M. Hadden, Director
Office of Federal Operation
March 20, 2001
DATE