Adlean Dennis, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 2000
01A05224 (E.E.O.C. Nov. 8, 2000)

01A05224

11-08-2000

Adlean Dennis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Adlean Dennis v. Veterans Affairs

01A05224

November 8, 2000

.

Adlean Dennis,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05224

Agency No. 200R-1658

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision 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.<1> The Commission accepts the

appeal in accordance with 29 C.F.R. � 1614.405.

On March 22, 2000, complainant contacted the EEO office regarding

claims of discriminatory harassment. Informal efforts to resolve her

concerns were unsuccessful. Subsequently, on April 28, 2000, complainant

filed a formal complaint based on race and sex. The events supporting

complainant's claim of harassment were framed as follows<2>:

The Vice President of AFGE Local 1119 and another union member sent

electronic messages to union members, which questioned complainant's

ability to perform her duties as President;

During 1999, the Vice President of AFGE Local 1119 and a union steward

altered or censored a direct e-mail message and other communications

to local union members; and,

During 1999, the Vice President of AFGE Local 1119 and a union steward

wrote letters, spread rumors, and lied about complainant in public,

in an effort to force her to resign as union president.

On June 27, 2000, the agency issued a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined that

the alleged events did not result in a discipline or other adverse action.

The agency further determined that the incidents occurred during the

course of union business while the individuals were acting in their

representative capacity, and therefore the agency had no control over

their actions.

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 harassed by union members in

an effort to cause her to resign as union president. As a result,

complainant asserts, her ability to perform her union duties was

impaired and she was subjected to unnecessary stress. We find,

however, that complainant has failed to show how the alleged e-mails,

letters and rumors caused her a harm or loss to a term, condition or

privilege of her employment. The Commission has held that except in

limited circumstances, the EEO process is not a mechanism to attack

internal union matters. See Bray v. Department of the Treasury, EEOC

Request No. 05940748 (March 23, 1995). Here, the matters set forth in

complainant's claims address purported actions by union members against

claimant in her position as a union official.

Moreover, the Commission has repeatedly found that remarks or comments

unaccompanied by a concrete agency action are not a direct and personal

deprivation sufficient to render an individual aggrieved for the purposes

of Title VII. See Backo v. United States Postal Service, EEOC Request

No. 05960227 (June 10, 1996); Henry v. United States Postal Service,

EEOC Request No. 05940695 (February 9, 1995). Therefore, we find

that complainant is not rendered an aggrieved employee by the alleged

incidents. In addition, the complaint is not sufficiently severe or

pervasive to state a claim of discriminatory harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing the complaint was proper

and is hereby AFFIRMED.

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 Operations

November 8, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We note that the agency decision did not number the events, but we do

so here for clarification.