01985216
09-17-1999
Jacqueline A. Crable, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jacqueline A. Crable v. United States Postal Service
01985216
September 17, 1999
Jacqueline A. Crable, )
Appellant, )
) Appeal No. 01985216
v. ) Agency No. 4C170001898
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant 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. The FAD was dated May 21, 1998.
The appeal was postmarked on June 17, 1998. Accordingly, the timely
appeal is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on March 3, 1998, alleging
discrimination on the basis of gender (female) when:
(1) on August 18, 1997, she became aware that the Postmaster forwarded
a letter to the Shamokin Job Center stating that appellant had refused
eight hours of work a day for five weeks;
(2) on September 19, 1997, the Postmaster appealed appellant's claim
for benefits;
(3) on March 2, 1998, appellant became aware that the Postmaster forwarded
a letter to the Shamokin Job Center stating that work was available at
the Post Office;
(4) on October 16, 1997, the Postmaster confronted appellant about her
complaint cards;
(5) on December 12, 1997, appellant was ordered to remove her mail from
her post office box by using her own key;
(6) from September 1997 through October 1997, the Postmaster tried to
assign appellant to a different office;
(7) on November 11, 1997, appellant was forced to work the holiday;
(8) on March 23, 1998, the Postmaster had a discussion with a customer
about another customer, and told appellant about how the customer walks
to her mailbox with a shotgun and two dogs;
(9) appellant was sexually harassed when the Postmaster frequently
exchanged comments of a sexual nature with customers; and
(10) the Postmaster used abusive and vulgar language.
Appellant asserted, in a statement attached to her formal complaint,
that these allegations were part of a continuing pattern of harassment
by the Postmaster.
In its FAD, the agency dismissed a portion of appellant's complaint.
Specifically, the agency concluded that allegations (1), (2), (3), (4),
(5), (6), and (8) each failed to state a claim. The agency accepted
allegations (7), (9), and (10). This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to
29 C.F.R. �1614.103. 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, national origin, age or disabling condition.
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 Air Force,
EEOC Request No, 05931049 (April 21, 1994). To establish that he is an
"aggrieved employee" and therefore states a claim under the regulations,
a complainant must allege that he was injured in fact.
We agree with the agency that allegations (1), (2), (3), (4), (5),
(6), and (8) each fail to state a claim.
Allegations (1) and (3) do not state claims because appellant was not
injured-in-fact by them. Both involved letters regarding the payment
of appellant's unemployment benefits. The record reveals that despite
these letters, appellant continued to receive her benefits and thus was
not injured by them.
Allegation (2) does not state a claim because it involves the Postmaster's
challenge to appellant's receipt of benefits. The Commission has held
that such an attack on an agency's challenge to an employee's receipt of
unemployment benefits does not state a separate and distinct claim of
employment discrimination, rather it is an attempt to "end run" around
another forum's adjudicatory procedures. Such a collateral attack does
not state a claim of employment discrimination. See Fisher v. Department
of Defense, EEOC Request No. 05931059 (July 15, 1994).
Allegation (4) does not state a claim because it involves a discussion,
which the Postmaster had with appellant, concerning complaint cards
filled out by appellant. This allegation merely involves comments made
to appellant by the Postmaster. The Commission has held that a remark
or comment, unaccompanied by a concrete agency action, is not a direct
and personal deprivation sufficient to render an individual aggrieved.
Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996);
Henry v. U.S. Postal Service, EEOC Request No. 05940695 (February 9,
1995).
Allegation (5) does not state a claim because it involves appellant's
own personal post office box. Appellant was not aggrieved by having to
use her own key to open her own post office box because such a box was
not a term, condition, or privilege of her employment.
Allegation (6) does not state a claim because it involves the Postmaster's
attempts to have appellant assigned to a different office. Since the
Postmaster was unsuccessful, and appellant was not transferred to a
different office, appellant has not shown that she was injured-in-fact
by the Postmaster's actions.
Allegation (8) fails to state a claim because it merely involves a
comment that the Postmaster made to appellant concerning a customer.
Since the comment involved no concrete action, appellant has not shown
that she was injured-in-fact by it.
To reiterate, we find that appellant's allegations (1) through (6),
and (8), each fail to state a claim. We find, further, that the agency
should consider allegations (1), (3), (4), and (8) as background evidence
of appellant's allegations of harassment which were already accepted by
the agency.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 17, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations