05980410
11-04-1999
Martha J. Lindsey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martha J. Lindsey v. United States Postal Service
05980410
November 4, 1999
Martha J. Lindsey, )
Appellant, )
) Request No. 05980410
v. ) Appeal No. 01971853
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF RECONSIDERATION
On March 2, 1998, Martha J. Lindsey (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Martha J. Lindsey v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC
Appeal No. 01971853 (February 13, 1998). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration
must submit written argument or evidence which 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 a 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). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of one allegation in appellant's complaint
for failure to state a claim.
BACKGROUND
The record in this case reveals that appellant contacted an EEO Counselor
and subsequently filed a formal complaint dated August 25, 1996, alleging
that she had been discriminated against on the bases of her sex (female),
age (56), and in reprisal for prior EEO activity when: 1. the Manager
of Distribution Operations harassed her by altering a statement she
made in connection with a grievance and circulating it for comments;
and 2. the Manager allowed his stepson to use a computer, thereby giving
him access to confidential information.
In its final decision dated November 22, 1996, the agency accepted
allegation 1 for processing. The agency, however, dismissed allegation
2 for failure to state a claim, noting that appellant failed to show
that she was harmed by the matter at issue. The agency indicated that
the Manager's stepson was merely asked to upgrade computer software
and did not have access to the passwords protecting employee records.
The previous decision affirmed the agency's dismissal of appellant's
complaint, finding no evidence that confidential information was released
concerning appellant.
In her request for reconsideration, appellant made several assertions
concerning the merits of allegation 1. Appellant reiterated that allowing
the Manager's stepson access to the computer constituted a Privacy Act
violation.
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request for
reconsideration, the agency's response thereto, and the entire record,
the Commission finds that appellant's request fails to meet the criteria
in 29 C.F.R. �1614.407(c). Specifically, appellant has presented no
evidence to show that the agency's dismissal of allegation 2 was improper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. 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. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
The Commission finds that the previous decision correctly determined
that appellant failed to show that she was aggrieved as a result of the
matter at issue in allegation 2. As stated in the previous decision,
there is no evidence to show, and appellant does not assert that any
confidential information was released. Further, the record indicates that
the Manager's stepson, who was an agency employee, was merely asked to
upgrade computer software, and was not given access to employee records.
With regard to appellant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. EEOC Compliance Manual, No. 915.003
(May 20, 1998). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id. Nevertheless, we find that the matter at
issue, which did not affect appellant personally, does not rise to
that level. Finally, while appellant indicated that she was seeking
compensatory damages, the Commission has held that, when an allegation
fails to show that a complainant is aggrieved for purposes of Title VII
and the EEOC Regulations, it will not be converted into an actionable
claim merely because the complainant has requested a specific relief.
Girard v. Department of the Treasury, EEOC Request No. 05940379
(September 9, 1994). Consequently, based on our review of the record,
we find that appellant has failed to provide evidence which would warrant
a reconsideration of the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is therefore the decision of the Commission
to DENY appellant's request. The decision in EEOC Appeal No. 01971853
(February 13, 1998) remains the Commission's final decision. There is
no further right of administrative appeal on a decision of the Commission
on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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. 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 (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:
November 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat