01984460
03-10-1999
Appellant,) ) v.) Appeal Nos. 01984460, 01985117 ) 01986723, 01986726 William J. Henderson,) Agency Nos. 4-G-770-0098-97 Postmaster General,) 4-G-770-0448-98 United States Postal Service,) 4-G-770-0565-98 Agency.
Barbara Janak,)
Appellant,)
)
v.) Appeal Nos. 01984460, 01985117
) 01986723, 01986726
William J. Henderson,) Agency Nos. 4-G-770-0098-97
Postmaster General,) 4-G-770-0448-98
United States Postal Service,) 4-G-770-0565-98
Agency.) 4-G-770-0614-98
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated appeals to the Equal Employment Opportunity
Commission (EEOC) from the final agency decisions concerning her equal
employment opportunity (EEO) complaints, which alleged 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. �621 et seq. The appeals are
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether appellant has established by a
preponderance of the evidence that the agency discriminated against her
on the bases of race (White), color (white), sex (female), age (56),
and reprisal (prior EEO activity) when:
(1) on October 31, 1996, she was not afforded official time to change
labels and routes, update and verify names on apartment boxes, and write
forwarding addresses on the cards [Complaint No. 4-G-770-0098-97];
(2) on February 18, 1998, a coworker was given access to appellant's
medical information in order to prepare the agency's response to a
workers' compensation claim [Complaint No. 4-G-770-0448-98];
(3) from April 4-13, 1998, she was not granted official time to process
her EEO complaints [Complaint No. 4-G-770-0565-98]; and
(4) on May 18, 1998, she was spoken to in a disrespectful manner by a
supervisor [Complaint No. 4-G-770-0614-98].
BACKGROUND
In complaints dated January 17, 1997; April 15, 1998; June 13, 1998;
and June 23, 1998, respectively, appellant, then a Carrier, PS-5 , at
the agency's Fairbanks Station, Houston, Texas, alleged that the agency
discriminated against her as delineated in the above-entitled statement
"Issues Presented." With regard to Complaint 1, the agency conducted an
investigation, provided appellant with a copy of the investigative report,
and advised appellant of her right to request either a hearing before
an EEOC administrative judge (AJ) or an immediate final agency decision
(FAD). Appellant did not respond to this communication. On April 6,
1998, the agency issued a FAD finding no discrimination. Complaints 2,
3, and 4 were all dismissed for failure to state a claim by FADs issued
May 22, 1998; July 23, 1998; and July 30, 1998, respectively. It is
from these decisions that appellant now appeals.
ANALYSIS AND FINDINGS
Complaint 1 - Not afforded official time to change labels and routes,
update and verify names on apartment boxes, and write forwarding addresses
on the cards
The agency investigated this allegation and issued a finding of no
discrimination. The Commission, however, finds that this allegation
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, disabling condition, or
in retaliation for prior protected activity. 29 C.F.R. ��1614.103,
1614.106(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. Riden v. Dept. of the Treasury, EEOC Request
No. 05970314 (October 2, 1998). The aggrieved employee �must allege
and show a present and unresolved harm or loss.� Diaz v. Dept. of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Appellant has
not alleged any harm for which there is a remedy. Rather, appellant has
requested prospective relief, in the form of an assurance that no negative
consequences will ensue as a result of not having been granted a request
for official time to perform the above-referenced tasks on October 31,
1996. Given that appellant has shown no harm or loss stemming from the
alleged denial of her request,<1> this allegation fails to state a claim.
Complaint 2 - Coworker was given access to appellant's medical information
to prepare agency's response to a workers' compensation claim
Appellant, who did not raise a claim under the Rehabilitation Act,
29 U.S.C. �791 et seq., alleged that a coworker was given access to
her medical information for purposes of preparing the agency's response
to a workers' compensation claim. Appellant alleged that her �privacy
rights� were violated, but did not allege a harm or loss stemming from
this incident for which relief might be granted. Further, the Commission
has long held that allegations involving violations of the Privacy Act
are outside of its purview. Bucci v. Dept. of Education, EEOC Request
Nos. 05890289, 05890290, 05890291 (April 2, 1989). Accordingly, this
allegation fails to state a claim. Cf. Barbara Gaines v. Dept. of
Veterans Affairs, EEOC Appeal No. 01974648 (February 26, 1999) (alleged
improper disclosure of medical information held to state a claim where
disclosure resulted in creation of hostile work environment).
Complaint 3 - Not granted official time to process EEO complaints
As a complainant, appellant has a right to a reasonable amount of official
time to present her complaints and to respond to agency requests for
information, if she otherwise is on duty. Equal Employment Management
Directive (EEO -MD) 110, Chapter 5, section VII(C) at 5-14. The agency
dismissed this allegation for failure to state a claim, noting that
the Commission's regulations at 29 C.F.R. Part 1614 no longer require
the agency to process a so-called �spin off� complaint related to the
processing of a previously filed complaint. However, when a complainant
alleges an improper denial of official time, he or she is alleging a
violation of the Commission's regulation at 29 C.F.R. �1614.605(b),
not a complaint of discrimination. Shepherd v. U.S. Postal Service,
EEOC Request No. 05960547 (September 12, 1997). It is irrelevant
whether the agency's action was motivated by discriminatory animus.
See Edwards v. U.S. Postal Service, EEOC Request No. 05950708 (October
31, 1996). Therefore, the agency shall determine whether the decision
to deny official time was proper, and shall remedy any violation which
has occurred. Shepherd, supra.
Complaint 4 - Spoken to in disrespectful manner by supervisor
The agency dismissed this allegation for failure to state a claim.
The Commission has held that in order to state a claim of harassment,
the factual allegations, taken together and considered as true, must
support either a claim of disparate treatment regarding a specific
term, condition, or privilege of employment, or a claim of hostile
or abusive work environment. Cobb v. Dept. of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). Thus, a complainant must not
only show that his or her complaint falls within the purview of an
anti-discrimination statute enforced by the Commission. The complainant
must also show, on the face of the complaint, that he or she has sustained
some harm in the employment relationship.
Here, appellant alleges that a supervisor �spoke [to her] disrespectfully
in front of others.� Appellant also stated that, in this regard, she
was �singled out and treated differently than other employees.� The
incident reported by appellant does not appear to present a very severe
incident; in other words, an incident sufficient to alter appellant's
work environment. Further, the Commission has held that a remark or
comment, unaccompanied by concrete action -- a disciplinary action,
for example -- is not a direct and personal deprivation sufficient
to render an individual aggrieved. See, e.g., Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992). Accordingly,
the Commission finds that appellant's complaint does not state a claim
and was properly dismissed by the agency.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decisions in Agency Nos. 4-G-770-0098-97 (Appeal
No. 01984460), 4-G-770-0448-98 (Appeal No. 01985117), and 4-G-770-0614-98
(Appeal No. 01986726); and to VACATE the FAD in Agency No. 4-G-770-0565-98
(Appeal No. 01986723).
ORDER
The agency is ORDERED to determine whether the decision to deny
appellant official time to process her EEO complaints was proper,
and shall remedy any violation which has occurred. Such remedy shall
include restoring any leave time which appellant may have taken as the
result of an erroneous determination, and placing appellant in paid
status for any leave without pay she may have taken as the result of
an erroneous determination. The agency is further directed to submit
a report of compliance to the Compliance Officer, as referenced below.
All such actions shall be completed within thirty (30) days of the date
on which this decision becomes final.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �l6l4.604(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. 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 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1For example, appellant has not explained whether her work was not
completed or whether she used personal time to complete her work.