Yuhe D. Wembi, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 12, 2000
01a00954 (E.E.O.C. Apr. 12, 2000)

01a00954

04-12-2000

Yuhe D. Wembi, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Yuhe D. Wembi, )

Complainant, )

)

v. )

) Appeal No. 01A00954

William J. Henderson, ) Agency No. 1-D-282-0008-99

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) pertaining to 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.<1> The Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office claiming he was discriminated against

on the bases of race, color, and national origin. Informal efforts to

resolve his concerns were unsuccessful. On September 9, 1999, complainant

filed a formal complaint. The agency framed the claim as follows:

On July 29, 1999, complainant was verbally threatened by a co-worker.

On October 8, 1999, the agency issued a FAD dismissing the complaint

for failure to state a claim.

On appeal, complainant reiterates his claim that he was verbally

threatened by a co-worker. Complainant also contends that he was

discriminated against in the processing of his complaint and that he

was terminated after the filing of his complaint.

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).

Here, complainant contends that he was discriminated when a co-worker

verbally threatened him. We find, however, that complainant has failed to

establish how the alleged incident resulted in a harm or loss to a term,

condition or privilege of his employment. Moreover, the Commission has

repeatedly found that remarks or comments unaccompanied by a concrete

agency action are not a direct and personal deprivation sufficient to

render an individual aggrieved for the purposes of Title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Therefore, we find that complainant is not an

�aggrieved� employee.

We also note that on appeal, complainant contends that he was

discriminated against in the processing of his complaint. When a

complainant raises a claim of improper processing, he should be

referred to the agency official responsible for the quality of complaint

processing and that these individuals should earnestly attempt to resolve

dissatisfaction with the complaints process as early as possible. See

EEOC Management Directive (MD) 110 (5-25), as revised, November 9, 1999;

Gaines v. Dept. of Navy, EEOC Request No. 05970321 (June 12, 1997).

Complainant is therefore advised to contact an official in the agency's

EEO office, if he believes that his complaint has been improperly

processed.

Finally, complainant raises for the first time on appeal the issue of his

termination from agency employment. Complainant is advised to contact

an EEO Counselor if he wishes to further pursue this matter.

Accordingly, the agency's decision to dismiss the complaint for failure

to state a claim was proper and 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:

April 12, 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.