01990924
02-15-2000
Judy A. Vetter, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Judy A. Vetter v. Department of Veterans Affairs
01990924
February 15, 2000
Judy A. Vetter, )
Complainant, )
)
v. ) Appeal No. 01990924
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 6, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on October 10, 1998,
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 race and reprisal when:
on June 16, 1998, she received a harassing email message with a
"racial implication;" and
the September 19, 1991 settlement agreement between the parties became
public knowledge and contributed to this incident of harassment.
The agency dismissed complainant's complaint pursuant to Volume
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 determined that complainant had
not been aggrieved by the incident described in allegation (1) of
her complaint. The agency found that complainant suffered no personal
loss with respect to a term, condition, or privilege of her employment.
The agency determined that in allegation (2) complainant alleged, in
essence, that the agency had breached the September 19, 1991 settlement
agreement between the parties which contributed to the incident complained
of in allegation (1). The agency determined that complainant's breach
allegation should properly have been brought to the attention of the
EEO Director in accordance with EEOC regulation 29 C.F.R. �1614.504.
Upon review, we find that the agency properly dismissed complainant's
complaint for failure to state a claim. It is the decision of this
Commission that complainant was not aggrieved within the meaning of EEOC
regulations, by the incident described in allegation (1). 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).
The record indicates that complainant was not harmed with respect to a
term, condition, or privilege of her employment.
The regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.504(a))
provides that where the complainant believes that the agency has failed
to comply with the terms of a settlement agreement, she shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance. The regulation further provides that the complainant
may request that the terms of the agreement be specifically implemented,
or the complaint reinstated.
In the instant matter, allegation (2) of complainant's complaint
alleges that the incident described in allegation (1) would not have
occurred but for the breach of the September 1991 agreement between
the parties. In that regard, we agree with the decision of the agency
that complainant's allegation of non-compliance should have been brought
to the attention of the agency's EEO Director, and addressed within
the context of the prior complaint. For the reasons set forth herein,
we AFFIRM the agency's decision dismissing complainant's complaint for
failure to state a claim.
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:
February 15, 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:
_______________ _____________________________
Date Equal Employment Assistant
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.