01A11050
02-27-2001
Marilu Martin v. Department of the Treasury
01A11050
February 27, 2001
.
Marilu Martin,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11050
Agency No. 01-2014T
DECISION
On November 13, 2000, complainant filed a timely appeal with this
Commission from an agency decision pertaining to her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding alleged threats made
against her on July 7, 2000. Specifically, complainant contended that
a discussion occurred between her and her acting Director regarding the
placement of her jacket. After expressing her concern that the jacket and
other items from her work area could disappear, complainant was approached
by the Group Manager and was told that the acting Director wanted a
written statement regarding her missing items. She was then provided a
handout regarding the disciplinary offenses and action that could be taken
against employees, including a highlighted portion concerning �making
false statements.� Complainant also claimed that on July 14, 2000, she
learned that the Acting Director ordered her immediate supervisor to tell
her to improve her attitude or he would block her impending transfer.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on October 11, 2000, complainant filed a formal complaint,
raising the matters for which she underwent EEO counseling.
On November 3, 2000, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency determined that complainant
did not show that a term, condition or privilege of her employment
was adversely affected as a result of the alleged threats. The agency
noted that complainant was not disciplined and that her transfer was
not blocked. Further, the agency concluded that the comments did not
constitute harassment as they were not sufficiently severe or pervasive.
The regulation set forth at 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).
We agree with the agency that complainant has failed to state a claim.
The alleged incidents involve comments regarding possible discipline
or the denial of a transfer. 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).
Complainant acknowledges that the threats were not carried out and
the record does not reflect that any action followed the remarks.
Moreover, we do not find that the alleged incidents were sufficiently
severe or pervasive to alter the conditions of her employment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 17, 1997).
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 27, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.