01976978
11-04-1998
Mary Oliver, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mary Oliver v. United States Postal Service
01976978
November 4, 1998
Mary Oliver, )
Appellant, )
)
v. ) Appeal No. 01976978
) Agency No. 4-G-770-0369-97
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 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. The final agency decision was received by
appellant on September 11, 1997. The appeal was postmarked September
18, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on March 5, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when (1) she did not receive the same overtime
opportunities as other employees; (2) she was not brought in on her off
days as were other employees; and (3) her station manager made comments
indicating that she thought appellant was lazy. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on May 9,
1997, appellant timely filed a formal complaint of discrimination on
the bases of race (black) and color (black).
On September 9, 1997, the agency issued its final decision(FAD) accepting
allegations (1) and (2) of appellant's complaint but dismissing allegation
(3) for failure to state a claim. The FAD determined that appellant
failed to show that she had suffered a personal harm with respect to a
term, condition or privilege of employment as a result of the comments
allegedly made by her manager.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
may dismiss a complaint which fails to state a claim pursuant to
29 C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title VII
(discrimination on the bases of race, color, religion, sex and national
origin), the ADEA (discrimination on the basis of age when the aggrieved
individual is at least 40 years of age) and the Rehabilitation Act
(discrimination on the basis of disability) shall be processed in
accordance with Part 1614 of the EEOC Regulations. To establish standing
as an "aggrieved employee" within the context of 29 C.F.R. �1614.103,
appellant must allege, first of all, that she has been injured in
fact. Hackett v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971).
Specifically, appellant must allege some direct harm which affects a
term, condition, or privilege of employment. See Riden v. Department of
the Treasury, Request No. 05970314 (October 2, 1998). The only proper
questions in determining whether an allegation is within the purview of
the EEO process are whether the complainant is an aggrieved employee
and whether she has alleged employment discrimination covered by the
EEO statutes. An employee is "aggrieved" if she has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
The agency found that since the alleged comments made by appellant's
manager did not result in any concrete action against the appellant,
she was not aggrieved within the meaning of Part 1614. On appeal,
appellant's representative indicates that the alleged comments were
made immediately before appellant's manager changed appellant's duties.
We find that appellant's complaint contains no such allegation that
appellant's duties were changed. We find further that the alleged
comments of appellant's manager did not result an any concrete action by
the agency. In that regard, we find that appellant failed to demonstrate
that she was aggrieved with respect to allegation (3) and in turn, failed
to establish a valid claim of discrimination prohibited by Title VII.
CONCLUSION
Accordingly, the decision dismissing a portion of appellant's complaint
for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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 (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 4, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations