Sheila P. Kamath, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a03631 (E.E.O.C. Aug. 28, 2000)

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.