01990350
12-21-1999
David L. Bupp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David L. Bupp v. United States Postal Service
01990350
December 21, 1999
David L. Bupp, )
Complainant, )
)
v. ) Appeal No. 01990350
) Agency No. 1-D-234-0053-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 17, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated September 17, 1998,
pertaining to his 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.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of sex (male) when on
April 30, 1998, complainant was questioned about his alleged conduct
that may be considered sexual harassment and feels the questioning is
a continuation of unfair treatment he has received from management.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant suffered no injury,
and even admitted that he suffered no harm.
On appeal, complainant contends that he was subjected to "malicious
slander" that caused harm to his reputation and future employment.
Complainant includes a complete history of his EEO history, including
arguments to support complaints that are not part of or relevant to the
present appeal.
EEOC Regulations require an agency to dismiss a complaint that fails to
state a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). 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, .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 22, 1994).
The Commission has previously held that the filing of an EEO complaint
by another individual does not constitute an injury by the agency to a
term, condition or privilege of employment. To allow the processing of
a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a co-worker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194
(May 26, 1994). Moreover, there is no remedial action available to
complainant when another individual files an EEO complaint, as the agency
has no authority to restrain an employee from raising EEO violations
through the EEO complaint process. See Carroll v. Department of the
Army, EEOC Appeal No. 01975910 (May 22, 1998), req. to recons. den. EEOC
Request No. 05980825 (January 22, 1999); Calloway v. Department of the
Army, EEOC Appeal No. 01943406 (July 15, 1994); Sherwood v. Department
of the Army, EEOC Appeal No. 01941846 (June 2, 1994). The Commission
also notes that an agency is legally obligated to investigate a claim
of sexual harassment. See Rogers v. Department of Defense, EEOC Request
No. 05940157 (February 24, 1995).
In the present case, complainant alleges harm from the agency's
investigation of an informal claim of sexual harassment against him.
The agency, by questioning complainant, was upholding its legal obligation
to investigate such claims. Complainant has no remedy for the agency's
conduct, and consequently, he fails to state a claim.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 21, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.