Patricia J. Statz, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 2, 1999
01980119 (E.E.O.C. Nov. 2, 1999)

01980119

11-02-1999

Patricia J. Statz, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Patricia J. Statz v. Department of the Army

01980119

November 2, 1999

Patricia J. Statz, )

Appellant, )

)

v. ) Appeal No. 01980119

) Agency No. 9705H0790

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The Commission finds that the agency's August 18, 1997 decision dismissing

appellant's complaint on the bases of failure to state a claim and on

the grounds that it raises an allegation that is pending before the

agency is proper, pursuant to the provisions of 29 C.F.R. �1614.107(a).

The record shows that in her complaint appellant alleged that she had

been discriminated against on the basis of reprisal for prior EEO activity

when:

(1) on April 18, 1997, she received a performance evaluation form

on which her Senior rater had changed three E ratings to S ratings to

justify lowering the overall rating on her performance appraisal for

the period November 1, 1995, through October 31, 1996;

(2) on April 11, 1997, she received a memorandum from her senior rater

in response to her memoranda to him; and

(3) on May 30, 1997, during a weekly staff meeting, her senior rater

stated that appellant had submitted award citations for the coaches

that had to be rewritten a "hundred times".

The agency dismissed allegation (1) pursuant to 29 C.F.R. �1614.107(a)

after finding that said allegation had been accepted for investigation

on April 30, 1997.<1> The agency also dismissed this allegation on the

alternative grounds of failure to state a claim. Regarding allegations

(2) and (3) the agency found that appellant had failed to show that she

had been harmed by the senior rater's actions. The agency also found

that all three allegations were insufficient to establish a claim of

hostile work environment.

On appeal, appellant contends, inter alia, that her reputation as manager,

supervisor and employee has been harmed by the senior rater's comments.

Appellant also alleges that these allegations are only a part of the

hostile environment to which she has been subjected.

An agency shall accept a complaint from any aggrieved employee or

applicant 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

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee 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 (Apr. 21,

1994). "To state a claim under our regulations, an employee must allege

and show an injury in fact." Id. (citing Hackett v. McGuire Bros., 445

F.2d 447 (3d Cir. 1971)). "Specifically, an employee must allege and

show a `direct, personal deprivation at the hands of the employer,'

that is, a present and unresolved harm or loss affecting a term,

condition or privilege of his/her employment." Id. (citing Hammonds

v. USPS, EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. USPS,

EEOC Request No. 05900367 (June 2, 1990)). A review of appellant's

complaint persuades the Commission that she has failed to show that

she was aggrieved. Moreover, the record also shows that allegation (1)

was previously accepted by the agency on April 30, 1997. Accordingly,

the agency's decision dismissing allegations (1) - (3) is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(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 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:

11/02/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The record shows that appellant filed a prior complaint on February 18,

1997, alleging that she had been discriminated against on the basis of

reprisal for prior EEO activity when on October 25, 1996, her senior

rater gave her an overall rating of 2, rather than level 1.