01992070
12-22-1999
Catherine F. Poirier, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Catherine F. Poirier, )
Complainant, )
)
v. ) Appeal No. 01992070
) Agency No. 98-54-03300
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
______________________________)
DECISION
We find that the agency's final decision dismissing the complaint on the
grounds of failure to state a claim is proper pursuant to the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1). <1>
The record shows that complainant sought EEO counseling alleging that
she had been discriminated against on the basis of age when on June 23,
1998, her second level supervisor commented to a co-worker that she was
�too old and too slow�. In her report, the EEO Counselor states that
although complainant also alleged that her second level supervisor had
failed to promote her and had threatened to �RIF� her, she �stated that
she did not want to raise these issues as formal allegations but provided
them as background information�.
On August 21, 1998, complainant filed a formal complaint alleging that she
had been discriminated against on the basis of age when on June 23, 1998,
her second level supervisor stated that she was �too old and too slow�.
No other issues were raised by complainant in her formal complaint.
The agency issued a final decision dismissing the complaint on the
grounds of failure to state a claim. On appeal, complainant contends
that she failed to include the past issues because the EEO counselor
provided her �with poor representation�.
A review of the record supports a determination that complainant was
afforded the opportunity to raise her concerns with the EEO counselor
and to include them as part of her formal complaint. Despite being
provided this opportunity, complainant solely raised, in the complaint,
the matter of being told she was too slow and too old.
The Commission has consistently held that a remark or comment
unaccompanied by any concrete effect does not render the complainant
aggrieved. See Fuller v. USPS, +EEOC Request No. 05910324 (May 2,
1991). Accordingly, the agency's final decision dismissing the complaint
on the grounds of failure to state a claim was proper and is hereby
AFFIRMED.
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:
Dec. 22, 1999
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 1
On 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.