Rosario Espinoza, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 19, 2001
01993090 (E.E.O.C. Jan. 19, 2001)

01993090

01-19-2001

Rosario Espinoza, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rosario Espinoza v. United States Postal Service

01993090

01-19-01

.

Rosario Espinoza,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01993090

Agency No. 1G753002199

DECISION

INTRODUCTION

Complainant filed an appeal with this Commission from a final agency

decision, 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. Upon review, the Commission finds that

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1).<1>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for failure to state a claim.

BACKGROUND

Complainant filed a formal complaint on December 17, 1998 in which she

alleged discrimination on the bases of race (Caucasian) and national

origin (Mexican-American) when her supervisor falsely accused her of

being away from her work area on three occasions and commented that

she did not understand English. In its final decision, the agency

dismissed complainant's complaint, concluding that complainant was not

aggrieved because she had not suffered loss or harm with respect to a

term, condition or privilege of employment. It is from that decision

that complainant appeals.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a)(1) requires an agency to 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. 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).

In the instant case, complainant asserts that she was harassed when her

supervisor falsely accused her of being away from her work area on three

occasions. According to complainant, her supervisor allegedly failed to

allow her to respond to his allegation, asked her to follow him out to

the dock, and made the statement, �Don't you understand English?� The

Commission finds, however, that the alleged actions and comments are not

sufficient to render complainant an aggrieved employee. 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). Moreover, complainant fails to provide evidence

of the agency taking adverse personnel action against her as a result

of the disagreement with her supervisor. The Commission determines,

therefore, that complainant has not alleged a harm or loss to a term,

condition, or privilege of her employment. Furthermore, we do not

find that the alleged events are sufficiently severe or pervasive to

state a claim of harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

CONCLUSION

Accordingly, the Commission holds that the agency's decision to dismiss

complainant's formal EEO complaint for failure to state a claim 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

__01-19-01________________

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.