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.