01987072
01-24-2000
Robin L. Reddick, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robin L. Reddick v. United States Postal Service
01987072
January 24, 2000
Robin L. Reddick, )
Complainant, )
)
v. )
) Appeal No. 01987072
William J. Henderson, ) Agency No. 1-K-221-0072-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 25, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 4, 1998,
dismissing her complaint for failure to state a claim.<1> The Commission
accepts the complainant's appeal in accordance with EEOC Order No. 960,
as amended.
In a formal complaint dated June 26, 1998, complainant alleged that she
was discriminated against on the bases of sex (female) and retaliation.
The agency defined the claims as follows:
On March 25, 1998, complainant observed Supervisor A spitting into a
trash container on the work room floor;
On April 28, 1998, Manager Distribution Operations (MDO) A failed to
take corrective actions to prevent complainant from being in a hostile
work environment due to the unbecoming behavior of Supervisor A;
On May 5, 1998, MDO B threatened complainant with removal;
On June 19, 1998, Senior EEO Complaint Processing Specialist refused
to accept (reinstate) the non-compliance of EEO complaint;
On an unspecified date, Supervisor A continually watched complainant
in the performance of her duties and no other employees were subject
to this treatment.
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a). The FAD stated that complainant
failed to submit evidence demonstrating that she was harmed by the
incidents in claims (1) and (3). With respect to claims (2) and (5),
the agency determined that Supervisor A has not directly supervised
complainant since October 1997 and noted that supervisory duties
include monitoring operations. The agency stated that, as to claim (5),
complainant had previously been afforded appropriate appeal rights and
therefore she was not "aggrieved".
Complainant made no contentions on appeal.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
The Commission finds that claims (1), (2), (3) and (5) were properly
dismissed for failure to state a claim. Complainant has not alleged
facts sufficient to suggest she has suffered a present harm or loss with
respect to a term, condition or privilege of employment.
The events alleged in claims (1), (2) and (5) do not render complainant an
"aggrieved" employee. Regarding claim (3), 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). In claim (3), complainant alleged that an MDO threatened her
with removal. Based on a review of the record, it appears that no agency
action was taken as a result of the purported removal threat.. Therefore,
claim (3) was properly dismissed for failure to state a claim. Moreover,
a review of the record reflects that the matters raised in claims (1),
(2), (3) and (5) are insufficient to support a claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Claim (4), regarding the refusal to reinstate an EEO complaint, was
also dismissed for failure to state a claim. However, we find that
this claim is more properly analyzed in terms of whether complainant
is alleging dissatisfaction with the processing of a previously filed
complaint. See Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(8). EEOC Regulation
29 C.F.R. � 1614.407(a)(8) provides that the agency shall dismiss a
complaint that alleges dissatisfaction with the processing of a previously
filed complaint. We determine that claim (4) addresses an agency EEO
official's purportedly improper processing of a prior EEO complaint and
is therefore, properly dismissed pursuant to the above cited regulation.
Accordingly, the agency's dismissal of complainant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 24, 2000
______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.