Paula Quinones, Appellant, v. Dick Cheney, Secretary, Department of Defense, (Defense Logistics Agency), Agency. Request No. 05920051 Appeal No. 01911669 Agency No. 1A-90-008 Hearing No. 170-91-8034X March 12, 1992 GRANTING OF REQUEST TO REOPEN INTRODUCTION On October 9, 1991, the Defense Logistics Agency (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Paula Quinones v. Dick Cheney, Secretary, Department of Defense, (Defense Logistics Agency), EEOC Appeal No. 01911669 (September 11, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). The agency bases its request on 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy); and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand.) For the reasons set forth herein, the agency's request is granted. ISSUE PRESENTED The issue presented is whether the Commission's previous decision properly vacated the agency's decision which found that appellant was not aggrieved and remanded the case to the agency for further processing. BACKGROUND On June 27, 1990, appellant filed a formal EEO complaint which alleged that she had been subjected to discrimination because of her national origin (Puerto Rican), physical handicap (perceived speech impairment), mental handicap (perceived mental health problem), and in reprisal for her prior EEO activity when on April 19, 1990, she was given a letter of referral which recommended that appellant seek assistance from the Employee Counseling Services (ECS) Program. Following an investigation, a proposed disposition was issued finding no discrimination. Dissatisfied with that result, appellant requested a hearing before an Administrative Judge (hereinafter referred to as AJ). On January 14, 1991, the AJ issued his decision, without holding a hearing, [FN1] upon determining that appellant was not aggrieved and found no discrimination. On February 8, 1991, the agency issued its final decision adopting the AJ's recommended finding. Accordingly, appellant initiated a timely appeal to the Commission. The record indicates that on April 19, 1990, appellant's Supervisor gave appellant a letter of referral recommending that she seek assistance from the ECS Program. In the letter the Supervisor specifically stated that it was not a disciplinary action, it would not become part of appellant's official personnel file, and it was confidential. The Supervisor noted several deficiencies in appellant's work performance especially with regard to her timeliness in completing assignments. According to the Supervisor, he was concerned that appellant's work problems were due to a speech impediment which resulted in appellant's inability to properly express herself in English. Consequently, the Supervisor recommended that appellant seek assistance from the ECS Program, as her failure to improve her performance could result in official notice of performance deficiency. In response to the letter, appellant did meet with an ECS Counselor and continued in counseling. In its previous decision of September 11, 1991, the Commission found that the mere fact that the agency issued a letter upon which future disciplinary action could purportedly be based established that appellant was aggrieved. The Commission noted that the letter could be used to show a series of actions or a pattern of harassment. Consequently, the Commission remanded appellant's case for a hearing and subsequent processing. In its request to reopen, the agency contends that the Commission's previous decision erred in finding that the letter of referral constituted an adverse action which rendered appellant aggrieved. First, the agency noted that the finding would have a chilling effect on the ECS Program because supervisors would hesitate to make referrals for fear that employees would consider themselves 'aggrieved.' Second, the agency contends that new and material evidence in the form of a supervisory nomination of appellant for a Special Act Award, which was approved on April 15, 1991, and a transfer of appellant in resolution of a May 1991 complaint, indicates that the letter was not part of on-going harassment. Finally, the agency cites two prior Commission decisions, EEOC Appeal No. 01903854 (March 6, 1991) and EEOC Appeal No. 01891045 (April 10, 1989), wherein the Commission held that referrals to meet with Employee Assistance Program Counselors were not adverse actions. In conclusion, the agency requests that the Commission reconsider its previous remand of the present case. In response to the agency's request, appellant, through her attorney, claims that holding the letter in her case to be an adverse action would not have a chilling effect on legitimate referrals. Appellant contends that the Supervisor improperly referred her due to a perceived speech impediment which was not a problem within the scope of the counseling services and, therefore, proves that the referral was discriminatory. Regarding the 'new' evidence, appellant asserts that this information has no relevance to whether the April 19, 1990 referral was discriminatory. Finally, appellant claims that the letter did affect her employment since it was after the issuance of the letter that she received her 1990 performance evaluation, which she previously disputed through the grievance procedure. Accordingly, appellant urges the Commission to deny the agency's request for reopening. ANALYSIS AND FINDINGS As noted above, the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. In order for a case to be reopened, the request must contain specific information which meets the criteria referenced above. We note that a request to reopen is not a form of second appeal. In the present case, the agency contends that the previous decision in EEOC Appeal No. 01911669 erred by finding that appellant was aggrieved when she was given a letter of referral to an ECS Counselor. The agency claims that the prior improper finding was a result of an erroneous interpretation of law and regulation, citing two prior Commission decisions which found that similar referrals did not constitute adverse actions; the agency asserts that the referral was not part of any pattern of harassment as indicated by evidence of more recent favorable treatment of appellant; and the agency contends that the prior erroneous decision will have effects beyond the actual case at hand based upon the chilling effect that the determination will have on future referrals. Upon review, the Commission finds that the agency has shown that the previous decision was in error and a reopening is warranted. In order to determine whether a disputed action is amenable to resolution through the EEO process, it must only be determined whether the complainant is an aggrieved employee within the meaning of the EEOC Regulations. An employee is 'aggrieved' if she has suffered direct and personal deprivation at the hands of the employer. See Aldo Abatecola v. Veterans Administration, EEOC Appeal No. 01852458 (June 4, 1986). In the present case, appellant alleged that her Supervisor discriminated against her by giving her a letter of referral recommending that she see an ECS Counselor. Appellant followed the letter's recommendation and met with an ECS Counselor. The letter of referral explicitly stated that it was not a disciplinary action, it would not become part of appellant's official personnel file, and it was confidential. While appellant asserts that the letter affected her subsequent performance evaluation, there is no evidence to show any connection between the letter of referral and the evaluation. Absent any evidence of a concrete effect, i.e., an injury in fact caused by the letter of referral, the Commission finds that the letter is analogous to a remark or comment unaccompanied by any concrete effect, and thus does not constitute a direct and personal deprivation. See Gary Fuller v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Request No. 05910324 (May 2, 1991). The decision in EEOC Appeal No. 01911669 erred in finding that the mere fact that future disciplinary action could purportedly be based on the letter of referral established that appellant was aggrieved. The letter was not a form of disciplinary action; it was confidential; and the possibility of a future action is equivalent to a proposed action which cannot be the issue of an EEO complaint. See 29 C.F.R. 1613.215(a)(2). Consequently, since appellant failed to show that she suffered any direct and personal deprivation as a result of the letter of referral, we find that she is not an 'aggrieved' employee within the meaning of 29 C.F.R. 1613.212. While the Commission concurs with the finding of the AJ, as adopted by the agency, that appellant was not an 'aggrieved' employee, the Commission finds that the AJ improperly proceeded to make a finding of no discrimination. Since appellant is not an 'aggrieved' employee within the meaning of 29 C.F.R. 1613.212, her complaint fails to state a claim within the purview of the EEOC Regulations and is subject to rejection pursuant to 29 C.F.R. 1613.215(a)(1). Therefore, we find that the AJ improperly proceeded to make a determination on the merits of appellant's complaint, i.e., finding no discrimination, and that the proper outcome was to remand the complaint to the agency for rejection. CONCLUSION After a review of the agency's request to reopen, appellant's response thereto, the previous decision, and the entire record, the Commission finds that the agency's request meets the criteria of 29 C.F.R. 1613.235(b). Accordingly, it is the decision of the Commission to grant the agency's request to reopen EEOC Appeal No. 01911669 (September 11, 1991) and that decision is hereby REVERSED. The Commission AFFIRMS the agency's decision as herein modified. This decision constitutes the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen. RIGHT TO FILE A CIVIL ACTION (P0391) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision. The limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is 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. 'Agency' or 'department' means the national organization, and not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z0391) 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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision. FOR THE COMMISSION: Frances M. Hart Executive Officer Executive Secretariat [FN1]. We note that in response to the AJ's notice that he intended to issue a recommended decision without a hearing, appellant attempted to include an additional allegation regarding a performance evaluation received in 1990. It was determined, however, that appellant had previously filed a grievance regarding the evaluation on June 11, 1990, and that the evaluation issue was not properly included in the present complaint. Since this determination has not been challenged, we will focus our decision herein on the issue in dispute, i.e., the April 19, 1990 letter of referral.