05980903
02-19-1999
Marcita M. Tuman, )
Appellant, )
)
v. ) Request No. 05980903
) Appeal No. 01974839
William J. Henderson, ) Agency No. 4F-950-0080-97
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
INTRODUCTION
On April 22, 1998 the appellant initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Tuman v. United States Postal Service, EEOC Appeal No. 01974839
(March 17, 1998). EEOC regulations provide that the Commission may, in its
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
that tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
The appellant's request to reconsider is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision which dismissed the appellant's complaint
for failure to state a claim.
BACKGROUND
In January 1997, the appellant filed an EEO complaint alleging that
she was discriminated against on the bases of race, color, religion,
national origin, sex, age, reprisal and disabilities when on October 23,
1996 she was yelled at and accused of being belligerent by the Postmaster
and told by her supervisor that her attitude would not be tolerated.
The appellant also alleged in her complaint that she was subjected to a
hostile work environment for the past three years, generally referring
to yelling, intimidation and threatening comments by management. This is
the complaint at issue.
Previously, in November 1996 the appellant filed an EEO complaint
(Complaint 1) alleging that she was discriminated against on the above
recited bases when on August 3, 1996, her supervisor's hateful attitude
and body language caused the appellant to "snap" after she had enough of
the "Good Old Boy Club" of male dominance. The appellant also alleged
in Complaint 1 that she was subjected to a hostile work environment for
the past three years, generally referring to yelling, intimidation and
threatening comments by management.
The agency dismissed Complaint 1 for failure to state a claim. The
Commission affirmed the dismissal.<1> It observed that while Complaint
1 alleged three years of a hostile work environment, it only alleged one
specific incident. The Commission found that one isolated incident was
not enough to rise to the level of a hostile work environment, and that
a remark or comment unaccompanied by concrete action was not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. The appellant did not file a request
for reconsideration of the decision.
The only other specific allegation in the complaint at issue was the
allegation regarding the alleged incident on August 3, 1996. The previous
decision defined the instant complaint as alleging discrimination
when the Postmaster accused the appellant of being belligerent and
the supervisor told her that her attitude would not be tolerated.
In affirming the dismissal for failure to state a claim, the previous
decision reasoned that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render an
individual aggrieved for purposes of Title VII.
In her request for reconsideration, the appellant argues that she has
been subject to a hostile work environment and is entitled to equitable
relief and damages. She submits a transcript of a hearing in February
1998 before the Office of Workers' Compensation Programs (OWCP). Therein,
the appellant discussed the August 3, 1996 and October 23, 1996 incidents.
She stopped working after the October 23, 1996 incident, attributing this
to mental problems caused by the agency. The transcript reflects that
various witnesses generally stated that management in the appellant's
facility intimidated and/or yelled at employees. Other than the August 3,
1996 and October 23, 1996 incidents, the specific incidents they discussed
did not involve the appellant.
ANALYSIS AND FINDINGS
In order to reconsider the Commission's previous decision, the appellant
must present evidence or argument that satisfies one of the criteria
of 29 C.F.R. �1614.407. After considering the appellant's request,
we find that she has not satisfied the criteria for reconsideration.
In the complaint at issue, the appellant alleged that she was
discriminated against when on October 23, 1996 she was yelled at by the
Postmaster and accused of being belligerent, and told by her supervisor
that her attitude would not be tolerated. She also alleged that she
was subjected to a hostile work environment for the past three years.
In Complaint 1 the appellant also alleged that she had been subjected to
a hostile environment for the past three years. The complaint at issue
is dated January 22, 1997, and Complaint 1 is dated November 1, 1996.
Noting in part that Complaint 1 only alleged one specific incident, the
Commission affirmed the agency's dismissal of Complaint 1 for failure
to state a claim, and the appellant did not file a request with the
Commission to reconsider its decision. To the extent that the Complaint
at issue contains the same allegation as Complaint 1 regarding a hostile
work environment over the last three years, this matter has already been
decided by this Commission.
An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that she has been discriminated
against by that agency because of race, color, religion, sex,
national origin, age, disabling condition or reprisal (EEO activity).
29 C.F.R. �1614.103 and .106(a). An aggrieved employee is 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 21, 1994).
The only specific incident in the instant complaint that was not included
in Complaint 1 regards the incident of October 23, 1996. Remarks or
comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995).
On request the appellant appears to argue that she is aggrieved by virtue
of the fact that she suffered harm or loss for which she is entitled
to an award of compensatory damages and other relief. When, as in the
instant case, an allegation fails to render a complainant aggrieved,
it will not be converted into a processable claim merely because the
complainant has requested relief. Therefore, the Commission finds that
the relief requested by a complainant is irrelevant as to whether a
complaint states a processable claim. Larotonda v. United States Postal
Service, EEOC Appeal No. 01933846 (March 11, 1994).
Accordingly, the agency's final decision dismissing the appellant's
complaint for failure to state a claim is AFFIRMED.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that the appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to deny the appellant's request.
The decision of the Commission in EEOC Appeal No. 01974839 remains the
Commission's final decision in this matter.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
February 19, 1999
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat1Tuman v. United
States Postal Service, EEOC Appeal
No. 01975399 (August 3, 1998).