01975196
10-06-1998
Shirley Maxie, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Shirley Maxie, )
Appellant, )
)
v. ) Appeal No. 01975196
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On June 18, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 19, 1997, pertaining to
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. In her complaint, appellant alleged that she was subjected to
discrimination on the basis of sex (female) when:
On May 14, 1996, appellant received a performance appraisal rating
which she felt was too low;
On June 13, 1996, appellant was verbally insulted by a co-worker; and
The October 23, 1996 response from the Director regarding appellant's
grievance filed on July 4, 1996, was untimely.
The agency dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), on the grounds that appellant raised the matter in a
Step III grievance, or, alternatively, pursuant to 29 C.F.R. �1614.107(b),
because appellant failed to initiate contact with an EEO Counselor
within forty-five (45) days of her receipt of the evaluation. The FAD
further dismissed allegation (2), pursuant to 29 C.F.R. �1614.107(b),
because it raised a matter that was not brought to the attention of an EEO
Counselor and was not like or related to a matter that was brought to the
attention of an EEO Counselor. Finally, the agency dismissed allegation
(3), pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim,
finding that appellant failed to show that she suffered harm with respect
to the terms, conditions, or privileges of her employment as a result
of the alleged untimely response to her grievance.
EEOC regulation 29 C.F.R. �1614.107(d) provides that an agency shall
dismiss a complaint, or portion thereof, where the complainant has raised
the matter in a negotiated grievance procedure that permits allegations
of discrimination. With regard to appellant's first allegation, the
record indicates that appellant raised the issue of her performance
evaluation in a Step III grievance. Further, the record shows that under
Article 13 �3(A)(3) of the AFGE, allegations of discrimination may be
filed under the statutory appeal procedure or the negotiated grievance
procedure, but not both. As appellant elected to pursue allegation
(1) under the negotiated grievance procedure, we find that the agency
properly dismissed appellant's allegation concerning her performance
evaluation pursuant to 29 C.F.R. �1614.107(d).<1>
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), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer, that is, a present
and unresolved harm or loss affecting a term, condition or privilege of
his/her employment". Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
After careful review of the record, we find that appellant failed to
show how she suffered harm with respect to the terms, conditions, or
privileges of her employment as a result of the incident identified
in allegation (2). 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. U.S. Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Therefore, dismissal of
allegation (2) pursuant to 29 C.F.R. �1614.107(a) was warranted.
With regard to allegation (3), we find that appellant has raised a matter
more appropriately pursued through the grievance process. Any remedial
relief to which she would be entitled would necessarily have to come
through that forum and not through the EEO process. Furthermore,
we note that appellant was unable to show that she was aggrieved as a
result of her supervisor's alleged delay in responding to her grievance,
i.e., appellant did not indicate that the delay caused her to suffer any
employment-related harm which could be remedied through the EEO process.
Consequently, allegation (3) also fails to state a claim upon which
relief can be granted.
Accordingly, the agency's dismissal of all three allegations in
appellant's complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Oct. 6, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Since we are affirming the agency's
dismissal of allegation (1) on the grounds that she raised the
matter in a negotiated grievance procedure, we will not address
the agency's alternative grounds for dismissal, i.e., that it
was untimely.