01A23056_r
08-22-2002
Sheryl L. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sheryl L. Smith v. United States Postal Service
01A23056
August 22, 2002
.
Sheryl L. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23056
Agency No. 4G-730-0100-01
DECISION
Complainant filed a timely appeal with this Commission from the agency
decision dated April 22, 2002, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of national origin, sex, and in reprisal
for prior EEO activity when:
1. on April 6, 2000, Postal Inspectors took a named Rural Carrier out
of complainant's station for an interview without prior notice; on March
21, 2000, a Postal Inspector called complainant a liar; and on March 22,
2000, the Inspection Service told complainant that a clerk needed to be
put off the clock;
2. in April 2000, Management of the Oklahoma District interfered with
complainant's promotion to the Dallas District as Postmaster, Allen,
Texas, EAS-21, when they submitted an Investigative Memorandum from the
Inspection Service to the Dallas District and as a result of the Postal
Inspectors action on November 1999 through April 6, 2000, complainant
was issued a proposed adverse action and denied a promotion; and
3. on April 25, 2000, complainant was made aware that her promotion as
Postmaster, Allen, Texas had been rescinded; and
4. on May 30, 2000, complainant received a decision letter upholding
a proposed letter of warning issued in lien of a seven-day suspension.
The agency dismissed claim (1) for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1). The agency determined that complainant did
not provide any evidence to suggest that she suffered a personal loss
or harm regarding a term, condition or privilege of her employment.
The agency dismissed claims (2) through (4) pursuant to 29 C.F.R. �
1614.107(a)(1) for stating the same claim that has been decided by the
agency. The agency found that claims (2) - (4) of the instant complaint
address the same matters involved in a prior complaint, identified as
Agency No. 4G-730-0127-00.
Claim (1)
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. �� 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).
Regarding claim (1), the Commission determines that complainant has
not alleged a personal loss or harm relating to a term, condition, or
privilege of her employment. Further, the Commission has consistently
held that a remark or comment unaccompanied by concrete action is not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. Henry v. USPS, EEOC Request
No. 05940695 (February 9, 1995). There is no evidence in the record
that complainant was subjected to any disciplinary action as a result
of the alleged remarks or actions that are addressed in this claim.
Thus, the Commission finds that the agency properly dismissed claim (1)
for failure to state a claim.
Claims (2) - (4)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that a complaint
should be dismissed if it states the same claim that is pending or has
already been decided by the agency or Commission. The Commission has
interpreted this regulation to require that the complaint must set forth
"identical matters" raised in a previous complaint filed by the same
complainant, in order for the subsequent complaint to be rejected.
Terhune v. United States Postal Service, EEOC Request No. 05950907
(July 18, 1997).
The Commission finds that the agency properly dismissed claims (2) -
(4) for stating the same claim that has been decided by the agency.
The record reflects that in a prior complaint (Agency No. 4G-730-0127-00),
complainant raised the same matters that are the subject of claims (2) -
(4).
Accordingly, the final agency decision dismissing the instant complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 22, 2002
__________________
Date