01990314
03-16-2000
Cindy E. Ortiz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cindy E. Ortiz v. United States Postal Service
01990314
March 16, 2000
Cindy E. Ortiz, )
Complainant, )
)
v. )
) Appeal No. 01990314
William J. Henderson, ) Agency No. 4-H-327-0263-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 13, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on race and sex. Informal efforts to resolve complainant's
concerns were unsuccessful. Accordingly, on July 3, 1998, she filed a
formal complaint. The agency framed the complaint as follows: On May 2,
1998, complainant was given an official discussion relative to excessive
talking and office performance on her new route.
On September 11, 1998, the agency issued a FAD dismissing the complaint
for failure to state a claim. The FAD indicated that an official job
discussion does not rise to the level of a cognizable claim. The agency
noted that pursuant to Article 16, Section 2 of the National Agreement,
management could discuss minor offenses with an employee and that such
discussions were not considered discipline and were not grievable. The
Agreement also provided that no notation pertaining to such a discussion
could be included in an employee's personnel folder.
On appeal, complainant argues that "my original complaint was
never addressed." Specifically, she refers to a comment made by her
supervisor, regarding her weight, which complainant considered harassment.
Complainant also contends that the alleged harassment has intensified
since her complaint was filed.
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 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).
The Commission has held that an official discussion does not render
the complainant aggrieved within the meaning of EEOC regulations when
it is not recorded or used as the basis of further disciplinary action.
See Quinones v. Department of Defense, EEOC Request No.05920051 (March
12, 1992). In the instant case there is no evidence that the discussion
was documented in a written record. Further, complainant has not alleged
that she has sustained any personal loss or harm with respect to a term,
condition or privilege of her employment as a result of the discussion.
Accordingly, the official discussion claim was properly dismissed for
failure to state a claim.
We note that the agency erred by failing to address complainant's
claim concerning her supervisor's remark about her weight, and the
Commission deems the agency's action to be tantamount to a dismissal
of that matter. The record reveals that the EEO office was notified
of the issue by complainant's request for counseling, and complainant
referenced the matter in her formal complaint. However, we find
that the remark incident fails to state a claim. 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). Further, the incident is not sufficient to state
a claim of discriminatory harassment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Therefore, we
find the agency's error to be harmless.
Accordingly, the agency's decision to dismiss the complaint was proper
and 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).
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:
March 16, 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.