Cathy R. Jones, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990715_r (E.E.O.C. Nov. 4, 1999)

05990715_r

11-04-1999

Cathy R. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Cathy R. Jones, )

Appellant, )

)

v. ) Request No. 05990715

) Appeal No. 01983955

) Agency No. 4-D-250-0071-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

INTRODUCTION

On May 18, 1999, Cathy R. Jones (hereinafter referred to as appellant)

timely initiated a request to the Equal Employment Opportunity Commission

(the Commission) to reconsider the decision in Cathy R. Jones v. United

States Postal Service, EEOC Appeal No. 01983955 (April 22, 1999).

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The appellant's request to reconsider is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's final decision which dismissed allegation (1) of appellant's

complaint for failure to state a claim.

BACKGROUND

Appellant initiated contact with an EEO Counselor on February 10, 1998.

On March 11, 1998, appellant filed a formal EEO complaint wherein she

alleged that she was discriminated against in reprisal for her previous

EEO activity when (1) on December 29, 1997, the Postmaster gave appellant

a direct order that appellant was never to use the Postmaster's office

for a meeting with her �flunky� friends and later, while having a

discussion with appellant's supervisor about appellant's EEO complaint,

the Postmaster made faces at appellant while appellant was waiting on

a customer causing the customer to ask if there was a problem; and (2)

on January 2, 1998, the Postmaster and appellant's supervisor tried to

prevent appellant from attending a scheduled EEO meeting by not advising

appellant that the meeting place had been changed, causing appellant to

be late for the meeting.

On April 6, 1998, the agency issued a final decision wherein it accepted

allegation (2) for investigation and dismissed allegation (1) on the

grounds of failure to state a claim. The agency determined that appellant

did not suffer a personal harm or loss with regard to a term, condition,

or privilege of her employment. The agency determined that appellant

was not an aggrieved employee within the meaning of Part 1614 of the EEOC

Regulations. Thereafter, appellant filed an appeal with the Commission.

The Commission affirmed the dismissal of allegation (1).<1> The

Commission found that appellant failed to demonstrate any harm or loss

affecting a term, condition, or privilege of her employment as a result

of the actions of the Postmaster. The Commission noted that a remark

or comment unaccompanied by a concrete agency action is not a direct

and personal deprivation sufficient to render and individual aggrieved

for the purposes of Title VII.

In her request for reconsideration, appellant argues that she still

suffers from stress and physical maladies that are directly attributable

to the abusive nature of the incident that occurred on December 29, 1997.

Appellant states that she has improved tremendously since the Postmaster

was reassigned. Appellant contends that the nature of her recovery

indicates that she stated a claim.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the appellant

must present evidence or argument that satisfies one of the criteria

of 29 C.F.R. �1614.407. After considering the appellant's request,

we find that she has not satisfied the criteria for reconsideration.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

For employees and applicants for employment, EEOC Regulation 29

C.F.R. �1614.103 provides that individual and class complaints of

employment discrimination prohibited by Title VII (discrimination on

the bases of race, color, religion, sex and national origin), the ADEA

(discrimination on the basis of age when the aggrieved individual is

at least 40 years of age) and the Rehabilitation Act (discrimination on

the basis of disability) shall be processed in accordance with Part 29

C.F.R. �1614 of the EEOC Regulations.

The only proper inquiry, therefore, in determining whether an allegation

is within the purview of the EEO process is whether the complainant is an

aggrieved employee and whether s/he has alleged employment discrimination

covered by the EEO statutes. 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 (Apr. 21, 1994).

In allegation (1), appellant alleged that the Postmaster gave her a direct

order that she was never to use the Postmaster's office for a meeting with

her �flunky� friends and later, while having a discussion with appellant's

supervisor about appellant's EEO complaint, the Postmaster made faces at

appellant while appellant was waiting on a customer causing the customer

to ask if there was a problem. Remarks or comments unaccompanied by a

concrete agency action usually are not a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of Title

VII. Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). On appeal, appellant appears to argue that allegation

(1) states a claim because she suffered stress and physical maladies

due to the Postmaster's alleged behavior. It appears that appellant

is raising a claim for compensatory damages, however, the Commission

has held that, when an allegation fails to show that a complainant is

aggrieved for purposes of Title VII and the EEOC Regulations, it will

not be converted into an actionable claim merely because the complainant

has requested a specific relief. Girard v. Department of the Treasury,

EEOC Request No. 05940379 (September 9, 1994). We find that appellant

was not aggrieved with respect to a term, condition, or privilege of

her employment by the incidents in question and allegation (1) fails to

state a claim.

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(a), and

it is the decision of the Commission to deny appellant's request.

The decision of the Commission in EEOC Appeal No. 01983955 remains the

Commission's final decision in this matter. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

The decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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.

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:

November 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat1Cathy R. Jones v. United States Postal

Service, EEOC Appeal No. 01983955 (April 22, 1999).