01982681
03-05-1999
Sandra Lozado-Boulware, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Sandra Lozado-Boulware, ) Appeal No. 01982681
Appellant, ) Agency No. TD 97-3175
v. ) Hearing No. 210-97-6351X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq.
See EEOC Order No. 960.001. In her complaint, appellant alleged that she
was discriminated against based on her sex, race (Black), national origin
(Puerto Rican/Hispanic), age (41) and reprisal for prior EEO activity
when she received a Letter of Proposed Removal dated February 24, 1997,
and her management allegedly delayed the processing of her Office of
Workers' Compensation Program (�OWCP�) forms.
Appellant, a Tax Examiner, GS-7, was involved in an altercation with
a coworker on October 25, 1996. Shortly thereafter, appellant filed
OWCP forms seeking compensation on the basis that she sustained an
injury to her back when the coworker bumped her into a wall during the
altercation. The agency apparently disputed that appellant injured her
back during the altercation, and the OWCP required appellant to submit
additional information before it made a determination on the claim.
However, appellant ultimately was awarded continuation-of-pay for the
period of October 26, to December 11, 1996.
On February 24, 1997, the agency issued a Letter of Proposed Removal, in
which it proposed terminating appellant's employment for several reasons,
including a charge that appellant had lunged at, pushed, shouted at,
and slapped the coworker during the altercation in October 1996.
Appellant sought EEO counseling and filed her instant EEO complaint on
April 16, 1997, which was accepted and investigated by the agency.
Thereafter, appellant timely requested a hearing before an EEOC
Administrative Judge ("AJ"). The AJ issued a recommended decision (�RD�)
without a hearing pursuant to the provisions of 29 C.F.R. �1614.109(e).
The agency adopted the RD, which found no discrimination, as its FAD.
In the RD, the AJ recommended that appellant's allegation concerning
issuance of the Letter of Proposed Removal be dismissed pursuant to the
provisions of 29 C.F.R. �1614.107(e) which authorizes the dismissal of
a complaint that alleges �that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.�
The AJ noted that the agency had not acted on the proposal at the time
appellant filed her complaint, and that appellant did not allege, and
the facts did not support an allegation, that the Letter of Proposed
Removal was part of an overall pattern of harassment.
Regarding the alleged delay in the processing of her OWCP forms,
the AJ noted that in her responses to the agency's interrogatories,
appellant referenced only retaliation as a basis. The AJ found that
her responses constituted a withdrawal of the other bases cited in her
complaint. Noting that appellant alleged retaliation for prior union
grievance activities, and that the record did not reflect that appellant
had engaged in protected EEO activity, the AJ found that she could not
establish a prima facie case of retaliation.
On appeal, appellant asserts that she was retaliated against for
her grievance activity and for securing approval of her OWCP claim.
Appellant disputes the agency's findings regarding the altercation with
the coworker and its findings regarding the other reasons set forth
in the Letter of Proposed removal. Appellant's references to her sex,
race, national origin and age indicate that she disputes any intent to
withdraw these bases from her complaint.
The Commission notes that the record establishes that appellant was
counseled that, should the agency remove her from employment, the
removal action would be appealable to the Merit Systems Protection Board
(�MSPB�). However, appellant maintained that she wished �to keep the
proposal ... separate from the termination.� The agency issued a Notice
of Termination Letter, effective July 11, 1997. Appellant's comments
on appeal, dated February 25, 1998, indicate that she had received a
hearing before the MSPB on the removal action.<1> Accordingly, the
Commission finds that the allegation concerning the issuance of the
Letter of Proposed Removal was subject to dismissal pursuant to the
provisions of 29 C.F.R. �1614.107(e).
With respect to appellant's allegation concerning the processing of
her OWCP forms, the Commission finds that the AJ properly determined
that appellant failed to establish that she had previously engaged in
protected EEO activity. Further, it has been long held that an agency
has an obligation to controvert an employee's OWCP claim when there
is a dispute as to an employee's entitlement. As a general rule,
controversion of an OWCP claim does not affect a term, condition or
privilege of employment so as to render a person aggrieved. See Hall
v. Department of Treasury, EEOC Appeal No. 01945595 (February 23, 1995).
Finally, the record is devoid of any evidence that the agency more
rapidly processed, or made fewer errors in, OWCP forms submitted by
persons outside of appellant's protected classes.
Accordingly, after a thorough review of the record, the Commission finds
that the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws and discerns no basis to
disturb the AJ's finding that appellant failed to establish reprisal
or discrimination. Therefore, it is the decision of the Commission to
AFFIRM the FAD.
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:
March 5, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 On July 9, 1998, the MSPB denied appellant's petition for review
of the initial decision issued on December 17, 1997. See MSPB Docket
No. CH0752970750-I-1. The denial indicates that the MSPB upheld the
removal action.