01991677_r
11-05-1999
Ruth A. Powell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ruth A. Powell, )
Appellant, )
)
)
v. ) Appeal No. 01991677
) Agency No. 1-D-276-0030-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 22, 1998, appellant filed a timely appeal of a final agency
decision, which was dated December 1, 1998, dismissing three allegations
in her complaint, pursuant to 29 C.F.R. �1614.107(a), for failure to
state a claim.
In its final decision, the agency identified the allegations of
appellant's October 23, 1998 complaint as whether appellant was
discriminated against when: (1) on July 4, 1998, her supervisor yelled
about her doing her job and when she was not talking to him, upon
hearing her saying �Jesus is a good God,� he rushed over to her and
said it was offensive and harassment to him; (2) on July 14, 1998, her
request for leave without pay (LWOP) was denied; (3) on July 15, 1998,
and August 3, 1998, her request for LWOP was denied; (4) on August 12,
1998, her coworker yelled at her and her supervisor said nothing to
the coworker regarding his actions; and (5) on August 13, 1998, the
coworker showed the supervisor information regarding the number of times
he had seen appellant taking notes, and appellant was called into the
office for an official discussion regarding taking notes on the clock.
The agency accepted allegations (2) and (3) and dismissed allegations
(1), (4), and (5) for failure to state a claim. The agency stated that
appellant submitted no evidence to demonstrate that she suffered any
harm or injury as a result of the alleged incidents.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .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).
Allegations (1) and (4) involved derogatory remarks from appellant's
supervisor and her coworker. The Commission has held that a remark or
comment, unaccompanied by concrete action, is not a direct and personal
deprivation sufficient to render an individual aggrieved. See Henry
v. United States Postal Service, EEOC Request No. 05940695 (February
9, 1995). Thus, we find that the subject allegations failed to state
a claim.
Allegation (5) involved an official discussion that appellant received
concerning her taking notes on the clock. The Commission has consistently
held that official discussions alone do not render an employee
"aggrieved." See Miranda v. United States Postal Service, EEOC Request
No. 05920308 (June 11, 1992); Devine v. United States Postal Service, EEOC
Request Nos. 05910268, 05910269 and 05910270 (April 4, 1991). There is
no evidence in the record that the subject discussion was recorded in any
personnel or supervisory files, nor is there any evidence that it can
be used as a basis for any subsequent disciplinary action. On appeal,
appellant provides no persuasive evidence in the record that she sustained
any personal injury or harm as a result of the alleged incident.
Accordingly, the agency's final decision is hereby 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. �1614.604(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 to 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations