Rosina A. Vacchiano, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01993897 (E.E.O.C. Jul. 6, 2000)

01993897

07-06-2000

Rosina A. Vacchiano, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rosina A. Vacchiano, )

Complainant, )

)

v. ) Appeal No. 01993897

) Agency No. 1-C-451-0026-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed an appeal with this Commission from an agency's decision

pertaining to her complaint of unlawful employment discrimination

in violation of Section 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. �1614.405).

Complainant contacted the EEO office regarding claims of discriminatory

harassment based on her physical disabilities. Informal efforts to

resolve complainant's concerns were unsuccessful. Subsequently, on

December 24, 1998, complainant filed a formal complaint. The agency

framed complainant's claims of harassment as follows:

1) On September 18, 1998, the Manager in Plant Support made the comment

�You're no good to me�;

2) On September 29, 1998, the Manager, through a third party, assigned

complainant to be a key person (solicitor) to the Combined Federal

Campaign (CFC); and,

3) On October 1, 1998, the Manager harassed complainant about using the

telephone for a business call and then accused her of leaving work early

the previous day.

On March 4, 1999, the agency issued a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined that

complainant did not demonstrate how the alleged incidents resulted in

a personal loss or harm regarding a term, condition, or privilege of

her employment.

On appeal, complainant argues that the agency has misinterpreted her

complaint. With respect to claim 2, complainant contends that issuing

instructions through an intermediary regarding complainant's assignment to

the CFC position illustrates her Manager's lack of respect and courtesy.

Regarding claim 3, complainant contends that another employee's phone

use was similarly limited .

The regulation set forth at 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 21, 1994).

In the instant case, complainant contends that she was harassed by her

Manager. In support of her claim, complainant describes remarks made by

the Manager (claim 1), the manner in which the key worker assignment was

made (claim 2), and comments made regarding her phone usage (claim 3).

We find that the alleged incidents are not sufficient to state a claim

of harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993), the Supreme Court reaffirmed the holding of Meritor Savings

Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable

if it is sufficiently severe or pervasive to alter the conditions of

the complainant's employment. The Court explained that an "objectively

hostile or abusive work environment" is created when "a reasonable person

would find [it] hostile or abusive� and the complainant subjectively

perceives it as such. Harris, supra at 21-22. Thus, not all claims

of harassment are actionable. Where a complaint does not challenge

an agency action or inaction regarding a specific term, condition or

privilege of employment, a claim of harassment is actionable only if,

allegedly, the harassment to which the complainant has been subjected

was sufficiently severe or pervasive to alter the conditions of the

complainant's employment.

Regarding claim 1, we note that 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).

Complainant has not shown that the Manager's remarks resulted in any

concrete agency action. Regarding claim 2, complainant states on appeal

that the alleged incident illustrates her Manager's �lack of respect

and courtesy.� Further, in claim 3, she contends that her phone use

was limited while others were not. However, she has not shown how the

incidents affected a term, condition, or privilege of her employment.

Further, we find that the alleged incidents are not sufficiently severe

or pervasive to state a claim of discriminatory harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing the complaint for failure

to state a claim was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 6, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.