01992281
03-16-2000
James E. Fuccillo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James E. Fuccillo, )
Complainant, )
)
v. ) Appeal No. 01992281
) Agency No. 4-B-028-0002-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's December 29, 1998 decision dismissing
Complainant's complaint on the grounds of failure to state a claim
is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)). <1>
The record shows that complainant filed a formal complaint of
discrimination alleging that he had been discriminated against on the
bases of sex and reprisal when on September 17, 1998:
(a) he became aware that an unwarranted, unjustified and non-factual
sexual harassment investigation was conducted which threatened his
livelihood; and
(b) the Acting Manager, threatened to take action against him on the
basis of the investigative report and Complainant's so-called prior
history.
The agency issued a final decision dismissing the complaint for failure
to state a claim after finding that the agency was �legally obligated
to investigate a complaint of sexual harassment�. The agency further
found that no action was taken against the Complainant as a result of
the investigation.
On appeal, complainant for the first time addresses the matter of his
not receiving a higher merit performance evaluation, as a result of a
�people problem� in his office.
A review of the complaint and the appeal shows that Complainant alleged
that he was discriminated against when: (a) the agency investigated
claims of sexual harassment raised by a coworker of the Complainant;
(b) the Acting Manager threatened to take action against the Complainant
The Commission has held that the complaint by another individual does
not constitute an injury by the agency to a term, condition or privilege
of employment. The Commission has also held that 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.
Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). Therefore, claim (a) was properly dismissed by the agency
on the grounds of failure to state a claim.
Regarding claim (b), the Commission has consistently held that a remark
or comment unaccompanied by any concrete effect does not render the
complainant aggrieved. Fuller v. USPS, EEOC Request No. 05910324
(May 2, 1991). Accordingly, claim (b) was also properly dismissed for
failure to state a claim.
Finally, we note that on appeal, complainant has alleged an incident of
unlawful employment discrimination that was not raised in the instant
complaint. Appellant is advised that if he chooses to pursue this claim,
he should initiate contact with an EEO Counselor thereon if he has not
yet done so.<2>
Accordingly, the final agency decision was proper and is hereby 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:
March 16, 2000
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:
____________
_________________________________
1 On 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 The Commission notes that on appeal, the agency argues that
this matter is the subject of a separate EEO complaint, (Complaint
No. 4B-028-0023-99), that is not presently before the Commission.