01991198
11-19-1999
Cordia M. Ford, )
Complainant, )
)
v. ) Appeal No. 01991198
) Agency No. 4-H-300-0326-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency 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., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq.<1> The final agency decision was received by
complainant on November 16, 1998. The appeal was postmarked November
23, 1998. Accordingly, the appeal is timely (see Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.402)), and is accepted
in accordance with EEOC Order No. 960, as amended.
Complainant contacted an EEO counselor on July 29, 1998, regarding
claims of discrimination. Specifically, complainant alleged that she
was discriminated against on July 29, 1998 when she submitted a request
for sick leave and her supervisor commented that he did not see how her
illness was related to an on-the-job injury.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on September 3, 1998, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the bases of physical disability (fibromyalgia/epigastric pain),
mental disability (anxiety/depression) and reprisal (prior EEO activity).
On November 16, 1998, the agency issued a final decision dismissing
complainant's complaint on the grounds that it failed to state a claim.
Specifically, the agency determined that complainant had not demonstrated
how she had been aggrieved by the alleged incident involving her
supervisor.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1)), the regulations provide,
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.
See 64 Fed. Reg. 37,644, 37,655 (1999)(to be codified at and hereinafter
referred to as 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 finds that the agency's decision dismissing complainant's
complaint was proper. Upon review, we find that complainant has failed
to show how she was aggrieved by the alleged incident. Complainant
has also failed to show that she was harmed with respect to a term,
condition, or privilege of her employment. Moreover, we find that
to the extent complainant's claim may also be considered an claim of
retaliatory harassment, we find that it does not rise to the level of
discriminatory conduct so severe or pervasive so as to create a hostile
work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993). The agency's decision dismissing complainant's complaint
for failing to state a claim is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 at 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).
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:
November 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's' representative
(if applicable), and the agency on:
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.