01a02900
07-13-2000
Doris B. Brabham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doris B. Brabham v. United States Postal Service
01A02900
July 13, 2000
Doris B. Brabham, )
Complainant, )
)
v. ) Appeal No. 01A02900
) Agency No. 1-H-332-0006-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the referenced complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1>
Complainant alleged that she was discriminated against on the bases of
sex, disability, and reprisal for prior EEO activity when her supervisor
harassed and humiliated her in front of co-workers by questioning her
about her work performance and making a negative comment about her
disability.
In its final agency decision (FAD), the agency dismissed the complaint
for failure to state a claim, finding that complainant was not aggrieved
by the incident at issue because it consisted of �words alone� and was
unaccompanied by a personnel action. On appeal, complainant contends
that this incident was part of a continuing violation and pattern of
harassment. In support of this contention, complainant lists the numbers
of four other complaints she claims to have filed. Complainant provides
no information regarding the content of these complaints, and does not
otherwise describe any of the claimed preceding incidents of harassment.
Complainant also fails to describe the alleged negative comment made by
the supervisor regarding her disability.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
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. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Here, although we note that
complainant is claiming that the incident in question is part of a pattern
of harassment, she has failed to describe any other acts of harassment,
merely referencing prior complaints with no indication that they concern
claims of harassment or that they are in any way related to the incident
at issue.<2> Because the incident at issue here is not so severe as
to rise to the level of harassment, we find that complainant failed to
state an actionable claim of harassment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, we find that the agency properly dismissed the instant
complaint, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 13, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2 Regarding complainant's continuing violation argument on appeal,
the Commission has said that the continuing violation doctrine is a
theory used by a complainant when the timeliness of an EEO complaint
is in question, i.e., when at least one, but not all, of a series of
claims occurred within the limitation period preceding the initial
EEO Counselor contact. See United Air Lines v. Evans, 431 U.S. 553
(1977); Rebo v. Department of the Air Force, EEOC Request No. 05900290
(May 10, 1990). The continuing violation doctrine is not, however,
relevant to the legal issues of whether complainant's complaint states
a claim. See Meros v. Department of Commerce, EEOC Request No. 05930760
(September 23, 1993).