01A13313_r
02-25-2002
Elena L. Amicone-Archey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elena L. Amicone-Archey v. United States Postal Service
01A13313
February 25, 2002
.
Elena L. Amicone-Archey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13313
Agency No. 1-C-151-0036-01
DECISION
Complainant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Believing that she was the victim of discrimination based on sex,
complainant contacted the EEO office. Specifically, complainant claimed
that she was discriminated against when on November 21, 2000, a plant
manager summoned complainant to a meeting to discuss allegations made
by a craft employee, who is her estranged husband.
On February 27, 2001, complainant filed a formal complaint that addressed
the matters for which she underwent EEO counseling, discussed above.
On March 20, 2001, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency argues that a remark or
comment unaccompanied by a concrete effect does not constitute a direct
and personal deprivation at the hands of the agency. Thus, the agency
found that there has been no harm to complainant.
On appeal, complainant has submitted her brief and several documents.
Complainant states that the plant manager �has created a �hostile work
environment' in that she attempted to limit my civil rights, including
harassing and intimidating me, by violating the privacy act with regards
to unauthorized, stored information, and threats of disciplinary action
in violation of such.� Complainant further argues following the November
21, 2000 incident, she had to use her sick leave and leave without pay
(LWOP) on various dates due to stress. The record contains copies of
PS Forms 3971 (Request for or Notification of Absence) for various dates
from November 22, 2000, through April 16, 2001 and a statement from her
doctor dated December 20, 2000. Complainant's doctor's note stated that
complainant has �a history of headaches - worse since July 2000.� The
doctor also stated that complainant's headaches �relates to work is that
when work stresses aggravate the situation.�
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final action.
The regulation set forth at 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).
Upon review, we find that there is no evidence that disciplinary action
was taken against complainant, and that she has not alleged a personal
loss or harm regarding a term, condition, or privilege of her employment.
Moreover, a review of the record reflects that the matters in question are
insufficient to support a claim of harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Accordingly,
the final agency decision dismissing the instant complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2002
__________________
Date