Marcita M. Tuman, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 19, 1999
05980903 (E.E.O.C. Feb. 19, 1999)

05980903

02-19-1999

Marcita M. Tuman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Marcita M. Tuman, )

Appellant, )

)

v. ) Request No. 05980903

) Appeal No. 01974839

William J. Henderson, ) Agency No. 4F-950-0080-97

Postmaster General, )

United States Postal Service, )

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

INTRODUCTION

On April 22, 1998 the appellant initiated a request to the Equal

Employment Opportunity Commission (Commission) to reconsider the decision

in Tuman v. United States Postal Service, EEOC Appeal No. 01974839

(March 17, 1998). EEOC regulations provide that the Commission may, in its

discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The

party requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The appellant's request to reconsider is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's final decision which dismissed the appellant's complaint

for failure to state a claim.

BACKGROUND

In January 1997, the appellant filed an EEO complaint alleging that

she was discriminated against on the bases of race, color, religion,

national origin, sex, age, reprisal and disabilities when on October 23,

1996 she was yelled at and accused of being belligerent by the Postmaster

and told by her supervisor that her attitude would not be tolerated.

The appellant also alleged in her complaint that she was subjected to a

hostile work environment for the past three years, generally referring

to yelling, intimidation and threatening comments by management. This is

the complaint at issue.

Previously, in November 1996 the appellant filed an EEO complaint

(Complaint 1) alleging that she was discriminated against on the above

recited bases when on August 3, 1996, her supervisor's hateful attitude

and body language caused the appellant to "snap" after she had enough of

the "Good Old Boy Club" of male dominance. The appellant also alleged

in Complaint 1 that she was subjected to a hostile work environment for

the past three years, generally referring to yelling, intimidation and

threatening comments by management.

The agency dismissed Complaint 1 for failure to state a claim. The

Commission affirmed the dismissal.<1> It observed that while Complaint

1 alleged three years of a hostile work environment, it only alleged one

specific incident. The Commission found that one isolated incident was

not enough to rise to the level of a hostile work environment, and that

a remark or comment unaccompanied by concrete action was not a direct

and personal deprivation sufficient to render an individual aggrieved

for the purposes of Title VII. The appellant did not file a request

for reconsideration of the decision.

The only other specific allegation in the complaint at issue was the

allegation regarding the alleged incident on August 3, 1996. The previous

decision defined the instant complaint as alleging discrimination

when the Postmaster accused the appellant of being belligerent and

the supervisor told her that her attitude would not be tolerated.

In affirming the dismissal for failure to state a claim, the previous

decision reasoned that a remark or comment unaccompanied by concrete

action is not a direct and personal deprivation sufficient to render an

individual aggrieved for purposes of Title VII.

In her request for reconsideration, the appellant argues that she has

been subject to a hostile work environment and is entitled to equitable

relief and damages. She submits a transcript of a hearing in February

1998 before the Office of Workers' Compensation Programs (OWCP). Therein,

the appellant discussed the August 3, 1996 and October 23, 1996 incidents.

She stopped working after the October 23, 1996 incident, attributing this

to mental problems caused by the agency. The transcript reflects that

various witnesses generally stated that management in the appellant's

facility intimidated and/or yelled at employees. Other than the August 3,

1996 and October 23, 1996 incidents, the specific incidents they discussed

did not involve the appellant.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the appellant

must present evidence or argument that satisfies one of the criteria

of 29 C.F.R. �1614.407. After considering the appellant's request,

we find that she has not satisfied the criteria for reconsideration.

In the complaint at issue, the appellant alleged that she was

discriminated against when on October 23, 1996 she was yelled at by the

Postmaster and accused of being belligerent, and told by her supervisor

that her attitude would not be tolerated. She also alleged that she

was subjected to a hostile work environment for the past three years.

In Complaint 1 the appellant also alleged that she had been subjected to

a hostile environment for the past three years. The complaint at issue

is dated January 22, 1997, and Complaint 1 is dated November 1, 1996.

Noting in part that Complaint 1 only alleged one specific incident, the

Commission affirmed the agency's dismissal of Complaint 1 for failure

to state a claim, and the appellant did not file a request with the

Commission to reconsider its decision. To the extent that the Complaint

at issue contains the same allegation as Complaint 1 regarding a hostile

work environment over the last three years, this matter has already been

decided by this Commission.

An agency shall accept a complaint from any aggrieved employee or

applicant for employment who believes that she has been discriminated

against by that agency because of race, color, religion, sex,

national origin, age, disabling condition or reprisal (EEO activity).

29 C.F.R. �1614.103 and .106(a). An aggrieved employee is 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 only specific incident in the instant complaint that was not included

in Complaint 1 regards the incident of October 23, 1996. Remarks or

comments unaccompanied by a concrete agency action usually are not

a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. Henry v. United States Postal

Service, EEOC Request No. 05940695 (February 9, 1995).

On request the appellant appears to argue that she is aggrieved by virtue

of the fact that she suffered harm or loss for which she is entitled

to an award of compensatory damages and other relief. When, as in the

instant case, an allegation fails to render a complainant aggrieved,

it will not be converted into a processable claim merely because the

complainant has requested relief. Therefore, the Commission finds that

the relief requested by a complainant is irrelevant as to whether a

complaint states a processable claim. Larotonda v. United States Postal

Service, EEOC Appeal No. 01933846 (March 11, 1994).

Accordingly, the agency's final decision dismissing the appellant's

complaint for failure to state a claim is AFFIRMED.

CONCLUSION

After a review of appellant's request to reconsider, the previous

decision, and the entire record, the Commission finds that the appellant's

request fails to meet the criteria of 29 C.F.R. �1614.407(c). It is

therefore the decision of the Commission to deny the appellant's request.

The decision of the Commission in EEOC Appeal No. 01974839 remains the

Commission's final decision in this matter.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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. 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.

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:

February 19, 1999

Date

Frances

M.

Hart

Executive Officer

Executive Secretariat1Tuman v. United

States Postal Service, EEOC Appeal

No. 01975399 (August 3, 1998).