Sherry Harriss, Complainant,v.Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01a01121 (E.E.O.C. Aug. 3, 2000)

01a01121

08-03-2000

Sherry Harriss, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.


Sherry Harriss, )

Complainant, )

)

v. ) Appeal No. 01A01121

) Agency No. F995374

Janet Reno, )

Attorney General, )

Department of Justice, )

(Federal Bureau of Investigation), )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency decision dated October 26,

1999, which dismissed complainant's complaint for failure to state a

claim and for challenging a proposed action, is proper pursuant to 64

Fed. Reg. 37,644, 37,656 (to be codified and hereinafter referred to

29 C.F.R. � 1614.107(a)(1) and.107(a)(5)).<1> Complainant alleged that

the agency discriminated against her on the basis of sex when:

the agency's Administrative Services Division (ASD) recommended that

complainant be granted the use of 200 hours of leave without pay (LWOP)

to be used over a six-month period rather than the two-year period she

requested; and

the agency suggested that complainant participate in the part-time

agent program.

The agency found that complainant's complaint failed to state a claim.

Specifically, the agency found that the ASD recommended that her LWOP

be restricted to six months and that this recommendation was a proposed

agency action because her leave had not been limited at the time she

filed the complaint. Also, the agency found that the part-time agent

program suggestion was not a concrete agency action.

Volume 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). The Commission has repeatedly found that a remark or comment

unaccompanied by concrete agency action is not usually a direct and

personal deprivation sufficient to render an individual aggrieved for

the purposes of Title VII. Backo v. U.S. Postal Service, EEOC Request

No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request

No. 05940625 (February 9, 1995).

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that the

agency shall dismiss a complaint that alleges that a proposal to take a

personnel action, or other preliminary step to taking a personnel action,

is discriminatory.

The Commission finds that complainant's LWOP had not been restricted and

that the recommendation was a proposed agency action to limit the LWOP

after six months. Also, the Commission finds that the recommendation to

participate in the part-time agent program was a remark unaccompanied by

a concrete agency action. The comment did not affect a term, condition,

or privilege of complainant's employment.

Accordingly, the agency's decision is 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:

August 3, 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.