APPELLANT,
v.
WILLIAM J. PERRY, SECRETARY, DEPARTMENT OF DEFENSE, (OFFICE OF DEPENDENTS EDUCATION), AGENCY.

Appeal No. 01941890
Agency No. GE-FY94-09

May 2, 1994

DECISION

Appellant filed an appeal with this Commission from a final decision of the agency concerning her complaint of unlawful employment discrimination, in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791etseq. The final agency decision was received by appellant on January 7, 1994. The appeal was post-marked February 1, 1994. Accordingly, the appeal is timely (see29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's complaint for failure to state a claim.

BACKGROUND

On November 24, 1993, appellant filed a formal complaint, alleging that she was the victim of unlawful employment discrimination. On the complaint form, appellant stated that the basis for discrimination was disability (pregnancy). Appellant alleged that the agency failed to hire her for a teaching position for which she was fully qualified due to her pregnancy, which appellant described as a temporary disability.

On December 30, 1993, the agency issued a final decision dismissing appellant's complaint for failure to state a claim. Specifically the agency stated, without further elaboration, that agency regulations and the Rehabilitation Act define a disabled person as one who has a physical or mental impairment which substantially limits one or more of such person's major life activities.

Appellant offers no new arguments on appeal. In response, the agency argues that it properly dismissed appellant's complaint. The agency notes that in her formal complaint, appellant claimed a temporary disability (pregnancy). The agency argues that appellant underwent EEO counseling regarding her purported temporary disability and further argues that appellant did not file a complaint of sexual discrimination. Additionally, the agency noted that it has considered the possibility that appellant may have been attempting to raise an allegation of sex discrimination regarding the agency's failure to select her for a teaching position. The agency concluded, however, that the record contains no evidence suggesting that appellant considered anything but a temporary disability (pregnancy) as the basis for the alleged discriminatory incident addressed in her formal complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107 provides that an agency may dismiss a complaint which fails to state a claim pursuant to 29 C.F.R. §1614.103. For employees and applicants for employment, EEOC Regulation 29 C.F.R. §1614.103 provides that individual and class complaints of employment discrimination prohibited by Title VII (discrimination on the bases of race, color, religion, sex, and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age) and the Rehabilitation Act (discrimination on the basis of disability) shall be processed in accordance with Part 1614 of the EEOC Regulations. In addition, the U.S. Supreme Court has stated that an employee is aggrieved when some personal loss or harm has been suffered with respect to a term, condition, or privilege of employment. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).

Here, the agency dismissed appellant's complaint for failure to state a claim, finding that her alleged basis of disability (pregnancy) is not covered under the EEOC regulations and the Rehabilitation Act. We note that pregnancy is not a disability within the meaning of the Rehabilitation Act. See Webb v. USPS, EEOC Appeal No. 01912580 (August 28, 1990). However, we further note that the crucial element in a charge of discrimination is the set of facts alleged therein, not the complainant's conclusions concerning the agency's motivation. See generally Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464, n.6 (9th Cir. 1970). In the instant case, appellant alleged that she was the victim of unlawful employment discrimination when the agency failed to select her for a teaching position because of her pregnancy. The Pregnancy Discrimination Act of 1978 amended Title VII to indicate that discrimination on the basis of pregnancy constitutes sex discrimination. We therefore find that appellant's complaint properly states a basis covered under Title VII and the EEOC regulations, namely sex (female).

We note, moreover, that the allegation raised in appellant's complaint properly states a claim. 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 she has alleged employment discrimination covered by the EEO statutes. An employee is "aggrieved" if she 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). Appellant's allegation regarding the agency's failure to select her as a teacher is sufficient to render her an aggrieved employee. Because, as discussed above, appellant has alleged that the adverse action was based on discrimination because of her pregnancy, she 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 allegation 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 be-comes 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 acknowledgement 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 (K1092)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1092)

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, MUSTBEFILEDWITHINTHIRTY(30)CALENDARDAYS 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 consider MUST be submitted to the Commission and to the requesting party WITHINTWEN-TY(20)CALENDARDAYS 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 post-mark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

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:

Ronnie Blumenthal
Director
Office of Federal Operations