01A43490_r
09-28-2004
Jackie M. Linton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jackie M. Linton v. United States Postal Service
01A43490
September 28, 2004
.
Jackie M. Linton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43490
Agency No. 1E-982-0034-03
DECISION
Complainant filed an appeal with this Commission from an April 9,
2004 agency decision, dismissing her complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
In the October 10, 2003 complaint, complainant alleged that she was
discriminated against on the bases of race (Black), sex (female),
disability, age (D.O.B. November 29, 1957), and reprisal for prior EEO
activity when: (1) on an unspecified date, she was required to call the
Attendance Control Officer for sick leave and other employees were not;
(2) during July 2003, complainant was assigned a heavier workload
than others; (3) on July 14, 2003, complainant was subjected to an
investigative interview where she was charged with performance failure;
and (4) on July 30, 2003, complainant was threatened with termination
during a staff meeting. On December 9, 2003, the complaint was amended
to include a fifth issue: (5) whether complainant was discriminated
against when her job offer in the Western Area DNO was abolished and
she was given a new job offer.
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. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). The complaint fails to state a claim
because complainant has not shown how she suffered a loss or harm as a
result of the agency's alleged actions. We note that the Commission has
held that being subjected to an agency investigation does not render an
individual aggrieved where complainant has not suffered an adverse action
as a result of the investigation. See Jones v. Department of the Army,
EEOC Request No. 05A00428 (March 1, 2002). Complainant has not shown that
she has suffered any adverse action as the result of the investigative
interview. Similarly, regarding the alleged threat, complainant has not
shown that the agency took any adverse action against her. The Commission
has consistently held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render
an individual aggrieved. See Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). The Commission also finds
that the alleged incidents, considered as a whole, were not sufficiently
severe or pervasive to state a claim of harassment as creating a hostile
work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993).
Accordingly, the agency's decision 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
September 28, 2004
__________________
Date