01a03631
08-28-2000
Sheila P. Kamath, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sheila P. Kamath v. United States Postal Service
01A03631
August 28, 2000
.
Sheila P. Kamath,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03631
Agency No. 1-C-451-0051-00
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated March 29, 2000, dismissing 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.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Indian) and national origin (Indian) when:
On January 19, 2000, complainant was harassed when the Supervisor of
Distribution Operations gave complainant an official discussion regarding
work performance, which also was in violation of a previous grievance
settlement.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(l)), for failure to
state a claim. The agency claimed that complainant failed to show that
she was aggrieved. In addition, the agency stated that complainant was
in the wrong forum to allege breach of a grievance settlement.
On appeal, complainant states that an official discussion is the first
step in the discipline process in that it leads to a Letter of Warning,
suspension, and eventually termination of employment. In addition,
complainant alleges that the official discussion was issued as further
harassment.
The regulation set forth at 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. �01614.103,
.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).
With regard to complainant's claim that the agency violated a previous
grievance settlement, we find that the agency properly dismissed this
portion of complainant's complaint. The Commission has held that a
complainant may not use the EEO process to obtain compliance with
a grievance settlement. Ouezada v. United States Postal Service,
EEOC Request No. 05930175 (Aug. 12,1993). The Commission finds that
complainant is attempting to use the EEO process to obtain compliance with
the previous grievance agreement. Such a claim is outside the purview of
the EEO process. Therefore, we find that the agency properly dismissed
the claim for failure to state a claim. Roseman v. Department of the
Treasury, EEOC Appeal No. 01954382 (May 30, 1996) (citation omitted).
With regard to complainant's claim that she was harassed on January
19, 2000, we find that the agency properly dismissed this claim for
failure to state a claim. Complainant alleged that she was subjected
to discrimination when on January 19, 2000, her supervisor gave her
an official discussion. Complainant has not shown how she was harmed
by the discussion. We note, however, that complainant does not set
forth specific incidents other than one incident which occurred on
January 19, 2000, namely, an official discussion concerning her work
performance. Complainant was not harmed with regard to a term, condition
or privilege of her employment as a result of the discussion. Although
complainant alleged that she was harassed, we find that absent a
specific explanation of other incidents that may have occurred, this one
incident by itself is not sufficiently severe or pervasive to constitute
harassment.
Accordingly, the agency's final decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2000
__________________
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 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.