01974300_r
03-10-1999
Wolodymyr A. Skrypka, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wolodymyr A. Skrypka, )
Appellant, )
)
v. ) Appeal No. 01974300
) Agency No. 1-H-302-1036-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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. The final decision was received by appellant on
April 7, 1997. The appeal was postmarked May 5, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On February 8, 1996, appellant initiated contact with an EEO Counselor.
In the EEO Request for Counseling form, appellant stated that on February
8, 1996, an agency official conducted a �pre-discipline interrogation�,
and that he was improperly referred to EAP. Appellant stated that the
agency actions improperly constituted �harassment of a continued nature�
that was so severe that it altered the conditions of his employment.
On February 4, 1997, appellant filed a formal complaint that is the
subject of the instant appeal, alleging that he was the victim of unlawful
employment discrimination on the bases of race, color, national origin,
sex, and reprisal. Appellant's complaint was comprised of the matters
for which he underwent EEO counseling, discussed above.
On March 27, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of
the following two allegations: (1) on February 8, 1996, appellant was
given a pre-disciplinary interrogation by an agency official and (2)
appellant was referred to EAP by another agency official. The agency
dismissed both allegations for failure to state a claim. Specifically,
the agency determined that appellant suffered no personal loss or harm
due to the agency's purported actions.
On appeal, appellant argues that the matters raised in his allegations
must be viewed in the context of his EEO complaint history. Appellant
further argues that these incidents, along with other incidents raised
in prior complaints, constitute harassment which creates a hostile
work environment. In support of this argument, appellant provides a
list of nineteen EEO complaints he has filed, the dates of filing, and
a summary of the agency officials who purportedly discriminated against
him in each of the complaints.
The record reflects that appellant has filed numerous EEO complaints,
including Agency Nos. 1-H-302-1095-95, 1-H-302-1084-95, and
1-H-302-1020-96, alleging that he was the victim of harassment by an
agency official. With regard to the identified cases, the record also
indicates that the agency issued final decisions dismissing the three
complaints, and that appellant appealed the decisions to the Commission.
The Commission vacated/reversed the agency's decisions and remanded the
complaints back to the agency for further processing. Specifically,
the Commission ordered the agency to consolidate the complaints,
including other complaints filed by appellant regarding harassment by an
agency official, for further processing. Skrypka v. USPS, EEOC Appeal
Nos. 01973462, 01973463, and 01973466 (December 4, 1997).
The record further reflects that appellant filed another complaint
(Complaint No. 1-H-302-1083-95), alleging that he was improperly
denied sick leave; that he was required to present a notarized note
documenting sick leave; and that the sick leave was only granted
following intercession by his union. The agency dismissed appellant's
complaint for failure to state a claim, on February 19, 1997. On appeal,
the Commission reversed the agency's decision to dismiss appellant's
complaint. Specifically, the Commission noted appellant's complaint
history as discussed above, and stated that the agency was clearly aware
that appellant has several complaints pending concerning actions by an
agency official. The Commission remanded Complaint No. 1-H-302-1083-95
to the agency for consolidation with Complaint Nos. 1-H-302-1082-95,
1-H-302-1084-95, and 1-H-302-1020-96, in view of appellant's contention
that he is subjected to harassment. The Commission also advised the
agency to consider consolidation of complaints filed by appellant
regarding alleged harassment by the identified agency official.
Skrypka v. USPS, EEOC Appeal No. 01973464 (January 12, 1998).
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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).
We note that on appeal, appellant argues that the two allegations raised
in the instant complaint are part of a pattern of harassment, and should
be viewed in the context of his EEO complaint history. We further note
as discussed above, that appellant previously filed formal complaints
alleging harassment and that the Commission previously vacated/reversed
the agency's decisions in those complaints, and remanded the complaints
to the agency for consolidation with other complaints filed by appellant
that allege harassment.
The Commission determines that neither of the two allegations raised in
appellant's formal complaint states a claim. The Commission finds that
appellant failed to show how he was harmed as a result of being subjected
to a pre-disciplinary discussion. Moreover, the Commission has held
that a referral to EAP absent any evidence of a concrete injury does
not constitute a direct and personal deprivation sufficient to render a
person aggrieved. See Quinones v. Department of Defense, EEOC Request
No. 05920051 (March 12, 1992). Appellant has not alleged that he has
suffered any job related injury caused by the referral, or that he was
in any way penalized.
Moreover, we decline to continue directing the agency to consolidate
appellant's complaints of harassment. Clearly, appellant has several
complaints of harassment pending at various stages in the EEO process.
To continually allow appellant to add to existing complaints would
preclude closure/resolution of any of appellant's EEO matters. In view
of the fact that appellant has complaints of harassment being processed,
we find that to add the existing complaint allegations to those already in
existence would not provide for any additional relief for appellant, but
rather it would serve only to overburden the administrative processing of
appellant's existing EEO complaints. Accordingly, the agency's decision
to dismiss appellant's complaint for failure to state a claim was proper
and 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:
March 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations