01984473_r
06-22-1999
Joie N. Hill, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Joie N. Hill, )
Appellant, )
)
v. ) Appeal No. 01984473
) Agency No. 98-0190-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On May 22, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated April 22, 1998, pertaining
to her 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. In her complaint, appellant alleged that she was subjected
to discrimination on the bases of race (Black), sex (female), and in
reprisal for prior EEO activity when:
On August 8, 1997, the Deputy Director (DD) of the Division of Medical
and Vocational Policy, on several occasions, shouted at appellant and
stated that she could not prepare her SSA-45 during work hours;
On September 3, 1997, the DD questioned appellant about compensatory
time she had worked on August 30, 1997;
On September 4, 1997, the DD conducted a threatening and abusive meeting
with appellant during which she was unjustifiably berated;
On September 8, 1997, the DD denied appellant the opportunity to make
a presentation to the Roadmap/Rationale Work Group, and limited her
participation to that of a supporting role;
On October 21, 1997, appellant had what she believed to be an informal
meeting with the DD, but discovered afterwards that the meeting had
been a performance review; and
On October 27, 1997, a Computer Specialist confronted appellant and
stated, �Everyone around here knows you have a negative attitude and
problems getting along with others. Everyone also knows what is going
on here with you.� As a result of this statement, appellant believed
that management shared information about her case with others, thus
violating her right to confidentiality.
The agency accepted allegations (1) through (4) for investigation
and dismissed allegations (5) and (6) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim.<1> Specifically,
the agency noted that neither allegation, by itself, alleged harm
with respect to the terms, conditions or privileges of her employment
sufficient to render her aggrieved under the EEOC regulations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In allegation (5), appellant alleged that she was misled as to the purpose
of a meeting with the DD. Appellant failed to show how she was aggrieved
as a result of this action, and there is no remedial relief available
for her on this claim. See Moreno v. Department of the Treasury, EEOC
Request No. 05940139 (October 28, 1994). Consequently, allegation (5)
was properly dismissed for failure to state a claim.
Accordingly, the agency's decision to dismiss allegations (5) and (6)
is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 22, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The Commission notes that on appeal, appellant indicated only that
she sought review of the agency's dismissal of allegation (5).
Accordingly, we will not examine whether dismissal of allegation
(6) was proper.