Marlene C. Little, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994425 (E.E.O.C. Nov. 8, 1999)

01994425

11-08-1999

Marlene C. Little, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Marlene C. Little v. Department of Veterans Affairs

01994425

November 8, 1999

Marlene C. Little, )

Appellant, )

)

)

v. ) Appeal No. 01994425

) Agency No. 99-1281

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision ("FAD") concerning her complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision

was dated April 15, 1999. The appeal was postmarked May 7, 1999.

Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency erred in dismissing allegation

"b" of appellant's complaint.

BACKGROUND

The record indicates that on February 2, 1999, appellant initiated contact

with an EEO Counselor regarding her complaint. The agency accepted one

allegation for investigation, and dismissed another. Informal efforts

to resolve appellant's concerns were unsuccessful. On March 9, 1999,

appellant filed a formal complaint, alleging that she was the victim

of unlawful employment discrimination on the basis of her physical

disability, when:

On February 12, 1999 she was verbally admonished for leaving boxes in the

middle of the floor and when on March 4, 1999 she was verbally admonished

for yelling at coworkers and slamming doors.( Hereafter "allegation b")

On April 15, 1999, the agency issued a final decision dismissing

allegation b of appellant's complaint on the grounds that she

was not aggrieved. Specifically, the agency found that a verbal

admonishment/counseling, without further action, such as a resulting

disciplinary action, does not render the appellant aggrieved since she

has not suffered an adverse employment action.

ANALYSIS AND FINDINGS

EEOC Regulations EEOC Regulation 29 C.F.R. �1614.107(a) 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.

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 21, 1994).

In addition, 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. U.S. Postal Service, EEOC Request No. 05960227

(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695

(February 9, 1995).

We find no deprivation which renders the appellant aggrieved within the

meaning of the regulations. Furthermore, the Commission has held that

a verbal reprimand unaccompanied by concrete action does not render an

employee aggrieved. See Banks v. Department of Health and Human Services,

EEOC Request No. 05940481 (February 16, 1995).

Accordingly, the agency's decision dismissing appellant's allegation is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1099)

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. 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

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:

11/08/1999 ____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations