01985475
01-18-2000
Kelli Mason, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kelli Mason, )
Complainant, )
)
v. ) Appeal No. 01985475
William J. Henderson, ) Agency No. 4C-430-0047-98
Postmaster General, )
United States Postal Service, )
)
Agency. )
____________________________________)
DECISION
On June 29, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on June 3, 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 basis of retaliation
for prior EEO activity when:
On February 23, 1998, complainant was harassed and her Freedom of Speech
was violated when she was informed by management that she was not to
speak off the clock about another person/employee.
The agency dismissed complainant's complaint on the grounds that
she failed to state a claim. Specifically, the agency stated that
complainant did not demonstrate a personal loss or harm with respect to
a term, condition, or privilege of employment. The agency contends that
complainant was not complaining about the management discussion itself
but was merely pursuing an alleged Freedom of Speech violation, which
was the outcome of the discussion. The agency stated that a remark or
comment unaccompanied by concrete action is not a direct and personal
deprivation sufficient to render a person aggrieved for purposes of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. With regard to complainant's Freedom of Speech allegation, the
agency stated that this issue is outside the purview of Title VII and
the EEOC Regulations. Thus, the agency concluded that since complainant
failed to provide evidence that she suffered a personal loss or harm with
respect to a term, condition, or privilege of employment as a result of
alleged management actions, she failed to state a claim.
The record reveals that on April 15, 1998, complainant stated that she was
not filing a complaint regarding the official discussion that occurred
on February 23, 1998, between herself and her supervisor. Thus, we find
that the only issue in complainant's complaint was the alleged violation
of her Freedom of Speech as a result of the February 23rd discussion.
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 22,
1994).
In the present case, complainant claims that she was harmed when
management informed her not to talk about other employees off the
clock. The record indicates that the discussion was not recorded
in any personnel or supervisory file, nor is there evidence that
complainant received corrective action relative to the incident on
February 23, 1998. 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). In addition,
the Commission has held that instructions to employees to cease talking,
without further agency action does not constitute a direct and personal
harm sufficient to render an individual aggrieved. See Jones v. United
States Postal Service, EEOC Request No. 05971050 (August 15, 1997);
Stup v. United States Postal Service, EEOC Appeal No. 01981185 (March
30, 1999). Therefore, based on the record we find that complainant has
failed to present evidence that she suffered a loss or harm to a term,
condition, or privilege of employment.
Accordingly, the agency's decision was proper and is AFFIRMED.
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:
January 18, 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 Assistant1On 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.