01992781x
01-05-2000
Deborah J. Anderson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah J. Anderson, )
Complainant, )
)
v. ) Appeal No. 01992781
) Agency No. 1-G-784-0014-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her attorney
on February 5, 1999, 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> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of sex
(female) and reprisal when on August 2, 1998, an agency supervisor
attempted to provoke her by making menacing and provocative gestures
towards her while she was at a flea market.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656, (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)) for failure to state a claim.
Specifically, the agency dismissed the complaint because its records
showed that the complaint's employment with the agency had ended on July
31, 1994, and therefore, she suffered no harm or loss with respect to
a term, condition, or privilege of employment.
In her appeal the complainant, through her attorney, states that she is
still an employee of the agency as evidenced by the agency's continued
requests for a Duty Status Report Form CA-17, from her treating physician.
Moreover, the complainant asserts that this incident is yet another
example of the hostile work environment created by her supervisor.
The record contains a PS Form 50, showing the complainant's termination
from the agency effective July 31, 1994. The agency record contains a
counselor's report, wherein, it is stated that the complainant has not
worked for the supervisor since 1994.
EEOC Regulation 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 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29 C.F.R. �
1614.103) and 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. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Here, the complainant alleged that she is still an employee of the
agency, although she does not state whether she actually goes in to work.
Even if the Commission accepted that the complainant was an employee at
the time of this incident, we cannot find that the gestures made at a
flea market, four years after the complainant worked for this supervisor
show that she suffered a harm or loss with respect to a term, condition
or privilege of employment.
Accordingly, we AFFIRM the agency's dismissal of the complainant pursuant
to 29 C.F.R. � 1614.107(a)(1) because she failed to state a claim of
discrimination under Title VII.
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:
Jan 5, 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:
_________________________
__________________________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.