01996900
11-28-2000
Marie M. Ryan v. United States Postal Service
01996900
November 28, 2000
.
Marie M. Ryan,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996900
Agency No. 1-K-221-0045-99
DECISION
On September 4, 1999, complainant filed a timely appeal with this
Commission from an agency decision pertaining to her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts
the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on sex, physical disability, and retaliation. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently, on
June 18, 1999, complainant filed a formal complaint. The agency framed
the claims as follows:
On March 26, 1999, complainant was given a pre-disciplinary interview
(PDI) and not provided an interpreter; and the Manager Distribution
Operations (MDO) gave her dirty/ugly looks before the PDI and mocking,
smiling looks after the PDI;
(2) On March 24, 1999, a supervisor harassed complainant by asking if
she had seen a doctor; and,
(3) On March 11, 18, and 25, 1999, she was not provided an interpreter
for safety/service talks and segregated from her pay location.
On August 4, 1999, the agency issued a decision accepting claim (3) and
dismissing claims (1) and (2) for failure to state a claim. Specifically,
the agency determined that there was no evidence showing that the PDI
was part of complainant's official record or that it was the basis of
subsequent discipline. Further, complainant failed to show that she was
harmed by the MDO's dirty looks. Similarly, the agency concluded that
there was no evidence that complainant suffered a harm or loss when a
supervisor asked if she had seen a doctor.
On appeal, complainant contends that she was issued a Letter of Warning
(LOW) as a result of the PDI. She admits, however, that the LOW was later
withdrawn by the agency, but argues that it should never have been issued.
Complainant also argues that she suffered �significant amount of anguish
almost on a daily basis for an extended period of time� because of the
alleged incidents.
As an initial matter, the Commission notes that the agency's decision
accepted a portion of the complaint while dismissing the other portion.
Although direct appeals of decisions partially dismissing a complaint
are no longer permissible under the regulation revised on November 9,
1999, it appears that the remainder (accepted portion) of the complaint
was the subject of a Settlement Agreement entered by the parties on May
9, 2000. Therefore, we shall consider the instant appeal because there
are apparently no remaining claims from the instant complaint pending
anywhere in the administrative EEO process.
The regulation set forth at 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 21, 1994).
Here, in claim (2), complainant asserts she was subjected to
discriminatory harassment when a supervisor asked her if she had seen
a doctor. We find that complainant has failed to show that she suffered
a personal harm or loss regarding a term, condition, or privilege of her
employment. Further, 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). Therefore, the
agency's dismissal of claim (2) for failure to state a claim was proper.
In claim (1), complainant claims that she was given a PDI and was not
provided an interpreter. She contends that as a result of the PDI she
was given a LOW, which she admits was later removed. The Commission
has previously held that a Letter of Warning reduced to a discussion no
longer constitutes a disciplinary action. Yeats v. United States Postal
Service, EEOC Request No. 05940605 (October 27, 1994); Gafforino v. United
States Postal Service, EEOC Request No. 05910847 (December 30, 1991).
Therefore, in most circumstances, claim (1) would not state a claim.
In the instant case, however, complainant is also claiming that she
was not provided an interpreter and that in essence the agency failed to
accommodate her disability. A disability accommodation affects the terms,
conditions and privileges of employment. Accordingly, we find that claim
(1) states a claim.
The Commission notes that the Settlement Agreement, which settled claim
(3), provided accommodations, including: two TDD Machines, closed
captioned training films, a sign up sheet to provide the hearing
impaired an opportunity to meet with their Supervisor or the Manager
when interpreters are available, and the availability of interpreters
during Safety Service Talks. The agreement also provided complainant
$3,500.00 in compensatory damages. Therefore, we find that claim (1) has
been rendered moot. See County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343
(July 10, 1998).
Accordingly, the agency's decision dismissing claims (1) and (2) is
AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.