Cheryl Y. Courts, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01993341 (E.E.O.C. Apr. 20, 2000)

01993341

04-20-2000

Cheryl Y. Courts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region), Agency.


)

Cheryl Y. Courts, )

Complainant, )

)

v. ) Appeal No. 01993341

) Agency No. 1D251001199

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic Region), )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(1)), and 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> Complainant

alleged that she was discriminated against on the bases of race (Black)

and sex (female) when:

on November 4, 1998, she was harassed and humiliated when her supervisor

(RMO) shouted in a loud voice for her to �get out, go home;�

on November 4, 1998, when she requested to see a union steward, RMO

threatened to call the state police to evict her from the building and

shouted in her face;

in May 1998, RMO made derogatory remarks about her being on Family

Medical Leave;

on November 18, 1998, she was denied the right to clock-in because

there was no light duty slot for her;

on August 1, 1998, RMO retaliated against her for using Family Medical

Leave when he took her out of the normal days off rotation; and

in May 1998, she was not informed about what procedures to follow in

order to get a light duty slot.

Issue #1, #2 and #4

We find that issues #1, #2, and #4 were appropriately dismissed for

failure to state a claim because the complainant failed to demonstrate

that she is aggrieved within the meaning of our regulations. 29 C.F.R. �

1614.107(a)(1)) provides, in relevant part, that an agency shall dismiss a

complaint 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.

29 C.F.R. �� 1614.103, .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. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

We have considered the complainant's suggestion that she was harshly,

verbally abused by RMO. However, 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. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No. 05940695 (February 9, 1995).

Issue #3, #5, and #6

We find that issues #3, #5, and #6 were appropriately dismissed

for failure to timely initiate counselor contact. In so finding,

we note that EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that

complaints of discrimination should be brought to the attention of the

Equal Employment Opportunity Counselor within forty-five (45) days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within forty-five (45) days of the effective date

of the action. The Commission has adopted a "reasonable suspicion"

standard (as opposed to a "supportive facts" standard) to determine

when the forty-five (45) day limitation period is triggered. See Howard

v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).

Thus, the time limitation is not triggered until a complainant reasonably

suspects discrimination, but before all the facts that support a charge

of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented by

circumstances beyond her control from contacting the Counselor within the

time limits, or for other reasons considered sufficient by the agency or

the Commission. The record reveals that complainant first had counselor

contact on November 18, 1998 but the incidents of alleged discriminatory

activity took place between May and August 1998. Since more that 45

days passed between the date of the alleged discriminatory conduct and

the counselor contact and since no persuasive arguments or evidence have

been presented that would justify an extension of time. We find that

the agency appropriately dismissed #3, #5, and #6.

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

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 20, 2000

________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.