01993486
12-14-1999
Larry R. Cummings, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Larry R. Cummings, )
Complainant, )
)
v. )
) Appeal No. 01993486
William J. Henderson, ) Agency No. 1-D-272-0004-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 30, 1999, the Commission received complainant's timely appeal
from a final agency decision (FAD), dated March 5, 1999, dismissing his
complaint for failure to state a claim.<1> The Commission accepts the
appeal in accordance with EEOC Order No. 960, as amended.
On February 16, 1999, complainant filed formal complaint regarding
allegations of discrimination based on age (58) and retaliation.
The agency issued a FAD which defined the claim as follows:
On November 16, 1998 complainant became aware that the BMC Manager
cited complainant's medical information and documentation in a letter
concerning his mental and physical problems due to stress.
The FAD dismissed the complaint for failure to state a claim.
Specifically, the agency stated that complainant did not provide any
evidence suggesting that he suffered a harm or loss with respect to a
term, condition, or privilege of his employment. The FAD noted that,
according to the BMC Manager, he was required to disclose relevant facts
in response to complainant's injury compensation claim.
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, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 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 the Air Force,
EEOC Request No. 05931049 (April 22, 1994).
In the instant case, complainant claims he was discriminated against when
the Manager cited his medical information in a letter. The Commission
finds that complainant has failed to indicate how the alleged agency
action resulted in harm or loss regarding a term, condition, or privilege
of his employment. Therefore, complainant is not an �aggrieved employee�.
The Commission notes, that the complaint also raises the issue of
harassment. In such instances, a complainant must allege facts which
when considered together and assumed to be true, indicate that the
complainant may have been subjected to discriminatory harassment that
was sufficiently severe or pervasive to alter the conditions of his or
her employment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). We find that the incident described in
the complaint is insufficient to state a claim of harassment.
Accordingly, the agency's dismissal of the complaint 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:
Dec. 14, 1999
____________________________
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.