Doris B. Brabham, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01a02900 (E.E.O.C. Jul. 13, 2000)

01a02900

07-13-2000

Doris B. Brabham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Doris B. Brabham v. United States Postal Service

01A02900

July 13, 2000

Doris B. Brabham, )

Complainant, )

)

v. ) Appeal No. 01A02900

) Agency No. 1-H-332-0006-00

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds that the referenced 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)).<1>

Complainant alleged that she was discriminated against on the bases of

sex, disability, and reprisal for prior EEO activity when her supervisor

harassed and humiliated her in front of co-workers by questioning her

about her work performance and making a negative comment about her

disability.

In its final agency decision (FAD), the agency dismissed the complaint

for failure to state a claim, finding that complainant was not aggrieved

by the incident at issue because it consisted of �words alone� and was

unaccompanied by a personnel action. On appeal, complainant contends

that this incident was part of a continuing violation and pattern of

harassment. In support of this contention, complainant lists the numbers

of four other complaints she claims to have filed. Complainant provides

no information regarding the content of these complaints, and does not

otherwise describe any of the claimed preceding incidents of harassment.

Complainant also fails to describe the alleged negative comment made by

the supervisor regarding her disability.

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 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). Here, although we note that

complainant is claiming that the incident in question is part of a pattern

of harassment, she has failed to describe any other acts of harassment,

merely referencing prior complaints with no indication that they concern

claims of harassment or that they are in any way related to the incident

at issue.<2> Because the incident at issue here is not so severe as

to rise to the level of harassment, we find that complainant failed to

state an actionable claim of harassment. See Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, we find that the agency properly dismissed the instant

complaint, and we AFFIRM the FAD.

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:

July 13, 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.

2 Regarding complainant's continuing violation argument on appeal,

the Commission has said that the continuing violation doctrine is a

theory used by a complainant when the timeliness of an EEO complaint

is in question, i.e., when at least one, but not all, of a series of

claims occurred within the limitation period preceding the initial

EEO Counselor contact. See United Air Lines v. Evans, 431 U.S. 553

(1977); Rebo v. Department of the Air Force, EEOC Request No. 05900290

(May 10, 1990). The continuing violation doctrine is not, however,

relevant to the legal issues of whether complainant's complaint states

a claim. See Meros v. Department of Commerce, EEOC Request No. 05930760

(September 23, 1993).