01A33316_r
06-03-2004
Delia Acosta, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Delia Acosta v. Department of the Air Force
01A33316
June 3, 2004
.
Delia Acosta,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A33316
Agency No. 9V1M03109
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 21, 2003, dismissing her complaint of unlawful
employment discrimination. Complainant alleged that she was subjected
to discrimination on the bases of race/national origin (Hispanic),
disability, age (over 40), and reprisal for prior EEO activity when:
On December 9, 2002, complainant's electronic mail was disconnected.
On December 10, 2002, complainant's medical restrictions were violated.
On January 6, 10, and 13, 2003, complainant's second level supervisor
harassed her by asking for medical documentation.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
We concur with the agency and find that complainant is not aggrieved as
a result of the acts alleged in these claims. Nothing in the record
indicates that complainant suffered any harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. Complainant has failed to explain how these incident rendered
her aggrieved. Moreover, we do not find that the claims are sufficiently
severe so as to state a claim of harassment. Regarding claim 1, there is
no evidence that the alleged disconnection of complainant's electronic
mail was for more than one day. As to claims 2 and 3, complainant
has failed to provide any specific information regarding her claims.
Complainant has not identified when the violations of her medical
restrictions occurred, what happened specifically in claims 2 and 3, how
she was directly disadvantaged, or how these matters altered the terms,
conditions, or privileges of her employment. Additionally, claims 2 and
3 lack sufficient specificity and detail to permit an investigation.
Furthermore, the Commission notes that the instant matter does not
involve the situation where complainant is alleging that she has not
been reasonably accommodated.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 3, 2004
__________________
Date