Martha J. Lindsey, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980410 (E.E.O.C. Nov. 4, 1999)

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