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.