Robin L. Reddick, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01987072 (E.E.O.C. Jan. 24, 2000)

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.