Ruth T. Murphy, Appellant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01981576 (E.E.O.C. Jan. 12, 1999)

01981576

01-12-1999

Ruth T. Murphy, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Ruth T. Murphy v. Department of Energy

01981576

January 12, 1999

Ruth T. Murphy, )

Appellant, )

)

v. ) Appeal No. 01981576

) Agency No. 97 (201) OSTI

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

The Commission finds that the agency's November 26, 1997 decision

dismissing a portion of appellant's complaint on the basis of failure

to state a claim, is not proper pursuant to the provisions of 29

C.F.R. �1614.107(a).

The record shows that appellant alleged that she had been discriminated

against on the bases of sex (female), age (55) and reprisal for prior

EEO activity when: (1) on July 31, 1997, she was given a one day

suspension; (2) she was denied training and promotional opportunities;

(3) management constantly monitored the use of her computer; (4) she

was not allowed to use government property for authorized purposes;

(5) management restricted her personal time during her lunch breaks;

(6) she was denied her constitutional rights; (7) she was restricted from

complying with directives from the President of the United States; and,

(8) she was restricted from complying with management's policy of open and

honest communications for all employees. The agency accepted allegations

(1) - (5). The agency issued a final decision and dismissed allegations

(6), (7) and (8) on the grounds of failure to state a claim. We agree.

An agency shall accept a complaint from any aggrieved employee or

applicant 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

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee 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 (Apr. 21, 1994).

"To state a claim under our regulations, an employee must allege and show

an injury in fact." Id. (citing Hackett v. McGuire Bros., 445 F.2d 447

(3d Cir. 1971)). "Specifically, an employee must allege and show a

`direct, personal deprivation at the hands of the employer,' that is,

a present and unresolved harm or loss affecting a term, condition or

privilege of his/her employment." Id. (citing Hammonds v. United States

Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United

States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).

A review of the dismissed allegations persuades the Commission

that appellant is alleging that the agency violated statutes and/or

regulations which are outside of the Commission's jurisdiction. She has

not identified any specific harm which made her aggrieved in allegations

(6) - (8). Accordingly, the agency's final decision is 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. �l6l4.604(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:

January 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations