01990628
08-04-1999
Wanda E. Canada, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Wanda E. Canada v. Department of the Air Force
01990628
August 4, 1999
Wanda E. Canada, )
Appellant, )
)
v. )
) Appeal No. 01990628
F. Whitten Peters, ) Agency No. AL900990119
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On October 19, 1998, appellant filed an appeal with this Commission from
a final agency decision (FAD), dated September 24, 1998, concerning 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.
Appellant's appeal is timely and is accepted in accordance with EEOC
Order No. 960, as amended.
In an EEO complaint dated July 13, 1998, appellant alleged she was
discriminated against on the basis of sex (female). The agency defined
the allegations as follows:
On July 10, 1998 appellant's first level supervisor issued her a letter,
Subject: Sick Leave Counseling, dated July 10, 1998;
On June 30<1>, 1998 a male co-worker used profane and threatening language
toward the appellant; and,
On July 2, 1998 appellant's acting first level supervisor threatened to
write up appellant if she contacted upper management with her issues.
The agency accepted allegation (1) and dismissed allegations (2) and
(3) for failure to state a claim. Specifically, the FAD indicated that
appellant had not suffered a personal harm as to a term, condition,
or privilege of employment by the alleged incidents.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 held that a remark or comment, unaccompanied by
concrete action, is not a direct and personal deprivation sufficient
to render an individual aggrieved. See Simon v. U.S. Postal Service,
EEOC Request No. 05900866 (October 3, 1990).
In the instant case, appellant does not allege and the record does not
show that she suffered any adverse employment action, nor any injury
or personal deprivation because of these incidents. Therefore, we find
that the agency properly dismissed allegations (2) and (3) for failure
to state a claim.
Accordingly, the agency's decision dismissing a portion of appellant's
complaint 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. �1614.604(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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
August 4, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We find that the FAD erroneously stated that the allegation occurred
on July 30, 1998, as a review of the record reveals the alleged event
took place on June 30, 1998.