01991206
12-23-1999
Donna M. DesRoberts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donna M. DesRoberts, )
Complainant, )
)
v. ) Appeal No. 01991206
) Agency No. 4B-040-0033-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning 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 final agency decision was
dated November 4, 1998. The appeal was postmarked November 19, 1998.
Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
The record indicates that on June 17, 1998, complainant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts
to resolve her concerns were unsuccessful. On September 27, 1998,
complainant filed a formal complaint, alleging that she was the victim
of unlawful employment discrimination on the basis of reprisal when on
June 16, 1998, she was denied union representation during an official
discussion regarding complainant's alleged violation of the agency's
zero tolerance policy.
On November 4, 1998, the agency issued a final decision dismissing
complainant's complaint for failure to state a claim. Specifically, the
agency found that an official discussion does not render an individual
aggrieved within the meaning of the EEOC Regulations. Further, the agency
found that complainant's claim regarding being denied union representation
was not within the purview of the EEO complaints process. The agency's
FAD, therefore, determined that complainant failed to demonstrate that
she had been aggrieved with respect to a term, condition or privilege
of her employment. We agree.
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, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.103); �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 22, 1994).
In the instant matter, complainant alleged that the agency had engaged
in discriminatory conduct when she was denied union representation
during an official discussion with her supervisor on June 16, 1999.
Upon review, we find that the agency's dismissal of complainant's
complaint was proper. The Commission finds that both of complainant's
claims address matters relating to the issuance of an official discussion
on June 16, 1998. The record contains no evidence that the discussion
was made a part of complainant's personnel file. Moreover, there is
no evidence reflecting that any discipline was issued as a result of
the official discussion. Further, complainant's contention on appeal
that the official discussion was an example of the agency's attempts
to harass and intimidate her is not persuasive. Complainant has not
alleged facts sufficient to show that she was subjected to discriminatory
harassment that was sufficiently severe or persuasive to alter the
conditions of her employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Accordingly, the agency's
decision dismissing complainant's complaint for failure to state a claim
is hereby AFFIRMED for the reasons set forth herein.
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. � 614.405). 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. � 614.604).
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. � 614.604(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. 23, 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 Assistant1 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.