Kelli Mason, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 18, 2000
01985475 (E.E.O.C. Jan. 18, 2000)

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.