01993090
01-19-2001
Rosario Espinoza v. United States Postal Service
01993090
01-19-01
.
Rosario Espinoza,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993090
Agency No. 1G753002199
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision, concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant filed a formal complaint on December 17, 1998 in which she
alleged discrimination on the bases of race (Caucasian) and national
origin (Mexican-American) when her supervisor falsely accused her of
being away from her work area on three occasions and commented that
she did not understand English. In its final decision, the agency
dismissed complainant's complaint, concluding that complainant was not
aggrieved because she had not suffered loss or harm with respect to a
term, condition or privilege of employment. It is from that decision
that complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, 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; �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.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
In the instant case, complainant asserts that she was harassed when her
supervisor falsely accused her of being away from her work area on three
occasions. According to complainant, her supervisor allegedly failed to
allow her to respond to his allegation, asked her to follow him out to
the dock, and made the statement, �Don't you understand English?� The
Commission finds, however, that the alleged actions and comments are not
sufficient to render complainant an aggrieved employee. 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). Moreover, complainant fails to provide evidence
of the agency taking adverse personnel action against her as a result
of the disagreement with her supervisor. The Commission determines,
therefore, that complainant has not alleged a harm or loss to a term,
condition, or privilege of her employment. Furthermore, we do not
find that the alleged events are sufficiently severe or pervasive to
state a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
CONCLUSION
Accordingly, the Commission holds that the agency's decision to dismiss
complainant's formal EEO complaint for failure to state a claim was
proper, and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__01-19-01________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.