05990715_r
11-04-1999
Cathy R. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cathy R. Jones, )
Appellant, )
)
v. ) Request No. 05990715
) Appeal No. 01983955
) Agency No. 4-D-250-0071-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
INTRODUCTION
On May 18, 1999, Cathy R. Jones (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Cathy R. Jones v. United
States Postal Service, EEOC Appeal No. 01983955 (April 22, 1999).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
that 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 misapplication of established policy, 29
C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
The appellant's request to reconsider is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision which dismissed allegation (1) of appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on February 10, 1998.
On March 11, 1998, appellant filed a formal EEO complaint wherein she
alleged that she was discriminated against in reprisal for her previous
EEO activity when (1) on December 29, 1997, the Postmaster gave appellant
a direct order that appellant was never to use the Postmaster's office
for a meeting with her �flunky� friends and later, while having a
discussion with appellant's supervisor about appellant's EEO complaint,
the Postmaster made faces at appellant while appellant was waiting on
a customer causing the customer to ask if there was a problem; and (2)
on January 2, 1998, the Postmaster and appellant's supervisor tried to
prevent appellant from attending a scheduled EEO meeting by not advising
appellant that the meeting place had been changed, causing appellant to
be late for the meeting.
On April 6, 1998, the agency issued a final decision wherein it accepted
allegation (2) for investigation and dismissed allegation (1) on the
grounds of failure to state a claim. The agency determined that appellant
did not suffer a personal harm or loss with regard to a term, condition,
or privilege of her employment. The agency determined that appellant
was not an aggrieved employee within the meaning of Part 1614 of the EEOC
Regulations. Thereafter, appellant filed an appeal with the Commission.
The Commission affirmed the dismissal of allegation (1).<1> The
Commission found that appellant failed to demonstrate any harm or loss
affecting a term, condition, or privilege of her employment as a result
of the actions of the Postmaster. The Commission noted that a remark
or comment unaccompanied by a concrete agency action is not a direct
and personal deprivation sufficient to render and individual aggrieved
for the purposes of Title VII.
In her request for reconsideration, appellant argues that she still
suffers from stress and physical maladies that are directly attributable
to the abusive nature of the incident that occurred on December 29, 1997.
Appellant states that she has improved tremendously since the Postmaster
was reassigned. Appellant contends that the nature of her recovery
indicates that she stated a claim.
ANALYSIS AND FINDINGS
In order to reconsider the Commission's previous decision, the appellant
must present evidence or argument that satisfies one of the criteria
of 29 C.F.R. �1614.407. After considering the appellant's request,
we find that she has not satisfied the criteria for reconsideration.
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 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
In allegation (1), appellant alleged that the Postmaster gave her a direct
order that she was never to use the Postmaster's office for a meeting with
her �flunky� friends and later, while having a discussion with appellant's
supervisor about appellant's EEO complaint, the Postmaster made faces at
appellant while appellant was waiting on a customer causing the customer
to ask if there was a problem. Remarks or comments unaccompanied by a
concrete agency action usually are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). On appeal, appellant appears to argue that allegation
(1) states a claim because she suffered stress and physical maladies
due to the Postmaster's alleged behavior. It appears that appellant
is raising a claim for compensatory damages, however, 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). We find that appellant
was not aggrieved with respect to a term, condition, or privilege of
her employment by the incidents in question and allegation (1) fails to
state a claim.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(a), and
it is the decision of the Commission to deny appellant's request.
The decision of the Commission in EEOC Appeal No. 01983955 remains the
Commission's final decision in this matter. There is no further right
of administrative appeal from a decision of the Commission on a request
for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
The decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat1Cathy R. Jones v. United States Postal
Service, EEOC Appeal No. 01983955 (April 22, 1999).