Carol Chin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01985467 (E.E.O.C. Feb. 11, 2000)

01985467

02-11-2000

Carol Chin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carol Chin v. United States Postal Service

01985467

February 11, 2000

Carol Chin, )

Complainant, )

)

v. )

) Appeal No. 01985467

William J. Henderson, ) Agency No. 1B-021-0045-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from a final agency decision (FAD)

dated June 1, 1998 dismissing complainant's complaint for failing to

state a claim (claim 1); and raising a matter that has not been brought to

the attention of a Counselor and failing to respond to a written request

for information (claim 2). <1> The agency defined the claims as follows:

On February 14, 1998, complainant's supervisor verbally threatened

complainant and told her co-workers to "watch out for the bitch"; and

Complainant was issued a discipline.

The Commission finds that claim 1 was properly dismissed for failing to

state a claim. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified

and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant

part, that an agency shall dismiss a complaint, or portion thereof, 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. See Volume

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited

as 29 C.F.R. � 1614.103); 29 C.F.R. �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. See

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April

21, 1994).

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. U.S. Postal Service, EEOC Request No. 05960227

(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695

(February 9, 1995). In the instant case, complainant does not allege

that her supervisor's comment was followed by any action. Therefore,

complainant is not considered to be "aggrieved."

The Commission finds that claim 2 was also properly dismissed. Volume 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as 29

C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall

dismiss a complaint or portion thereof which raises a matter that has

not been brought to the attention of an EEO Counselor, and is not like

or related to a matter on which the complainant has received counseling.

A later allegation or complaint is "like or related" to the original

complaint if the later allegation or complaint adds to or clarifies the

original complaint and could have reasonably been expected to grow out of

the original complaint during the investigation. See Calhoun v. United

States Postal Service, EEOC Request No. 05891068 (March 8, 1990); Webber

v. Department of Health and Human Services, EEOC Appeal No. 01900902

(February 28, 1990). The agency dismissed claim 2 for failure to present

the matter to an EEO counselor. Complainant contacted an EEO counselor on

February 14, 1997. Neither the counselor's report nor the pre-complaint

counseling form addresses the issue of discipline. The record also

reveals that on March 6, 1998 complainant and her counselor signed a form

regarding "Issues presented and agreed upon during counseling", which

listed the February 14, 1998 verbal abuse incident as the sole issue.

The discipline issue was again absent. Additionally, we do not find that

the issue of discipline "adds to or clarifies" the claim of verbal abuse.

Because we affirm the agency's decision to dismiss claim 2 for the reason

stated herein, we find it unnecessary to address the agency's decision

to dismiss the claim on alternative grounds.

Finally, we note that on appeal, complainant argues that her complaint

was not filed for the February 14, 1997 incident alone. She raises

for the first time several new claims including: assignments to less

preferable tasks, harassment by co-workers, and a seven-day suspension

based on reprisal. Complainant is advised that if she wishes to pursue

these claims through the EEO process, she must initiate contact with an

EEO Counselor.

Accordingly, the agency's decision dismissing complainant's complaint

is hereby AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 11, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at WWW.EEOC.GOV.