05970496
04-08-1999
Sheila J. Suttles, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sheila J. Suttles v. United States Postal Service
05970496
April 8, 1999
Sheila J. Suttles, )
Appellant, )
) Request No. 05970496
v. ) Appeal No. 01963979
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF RECONSIDERATION
On February 14, 1997, Sheila J. Suttles (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Sheila J. Suttles
v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, EEOC Appeal No. 01963979 (January 23, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which 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 a 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). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of two allegations in appellant's
complaint.
BACKGROUND
The record in the case herein reveals that appellant contacted an EEO
Counselor and subsequently filed a formal complaint dated November 16,
1995, alleging that she was discriminated against on the basis of her sex
(female) when: 1. on October 6, 1995, she was given a pre-disciplinary
interview; and 2. on October 11, 1995, she was threatened with a
7-day suspension.<1> Appellant asserted that the actions constituted
harassment, and that she experienced mental anguish.
In its final decision dated March 28, 1996, the agency dismissed
allegation 1 for failure to state a claim, noting that such discussions
are not considered disciplinary actions and are not noted in an employee's
personnel folder. The agency dismissed allegation 2 as concerning
a proposal to take action, because appellant was not subjected to a
suspension or other discipline. The previous decision affirmed the
agency's dismissal of appellant's complaint.
In her request for reconsideration, appellant did not address the
previous decision's or the agency's findings regarding allegations 1
and 2. Appellant, instead, offered arguments concerning the agency's
separate dismissal of a third allegation as being moot.
The agency did not submit a response to appellant's request for
reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request
for reconsideration, and the entire record, the Commission finds that
appellant's request fails to meet the criteria in 29 C.F.R. �1614.407(c).
While the previous decision affirmed the dismissal of allegation 2 as
concerning a proposed action, we find that the matter was more properly
dismissed for failure to state a claim. Nevertheless, appellant has
presented no evidence to show that the agency's dismissal of allegations
1 and 2 was improper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. 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. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the case at hand, appellant does not claim, and there is no
evidence that she was subjected to any disciplinary action or received
a suspension. Further, the Commission has held 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.
See Simon v. USPS, EEOC Request No. 05900866 (October 3, 1990) (Employee
is not aggrieved by a threat to have her fired, where the comment was
not accompanied by any action to do so).
While appellant asserted that the actions cited constituted harassment,
we find that appellant's allegations are not sufficient to indicate that
appellant may have been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. As noted
in Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997), the Commission has repeatedly found that allegations of a
few isolated incidents of alleged harassment are not sufficient to state
a harassment claim. Nevertheless, in Cobb, the Commission noted that,
without considering the ultimate merits of a claim, a complaint should not
be dismissed for failure to state a claim unless it appears beyond doubt
that the complainant can prove no set of facts in support of the claim
which would entitle the complainant to relief. See also Riden, supra.
As stated, appellant's complaint alleged that she was given a
pre-disciplinary interview, threatened with a suspension, and assigned to
work with an employee with whom she had prior conflicts. As indicated
above and in Cobb, the Commission has repeatedly found that remarks or
comments alone are not sufficient to state a claim. Further, it does not
appear that the October 6, 1995 discussion was documented in any written
records, or used as the basis for any subsequent disciplinary action.
Thus, the Commission finds that allegations 1 and 2 are insufficient
to state a claim under Federal equal employment opportunity laws.
Finally, although appellant indicated that she experienced mental
anguish, the Commission has held that, when an allegation fails to
show that a complainant is aggrieved for purposes of Title VII and
the EEOC Regulations, it will not be converted into an actionable
claim merely because the complainant has requested a specific relief.
Girard v. Department of the Treasury, EEOC Request No. 05940379
(September 9, 1994). Consequently, based on our review of the record,
we find that appellant has failed to provide evidence which would warrant
a reconsideration of the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
therefore the decision of the Commission to DENY appellant's request.
The decision in EEOC Appeal No. 01963979 (January 23, 1997), as modified,
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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:
April 8, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant also asserted that on October 17, 1995, she was placed in a
rotation with an employee with whom management knew she had prior
conflicts. That allegation was accepted and investigated by the agency.
Prior to a hearing being held, the Administrative Judge granted the
agency's motion to remand the matter for dismissal on the grounds that
the issue was now moot. The agency's final decision on the issue is
being addressed in a separate appeal (EEOC Appeal No. 01992803).