01983698
06-23-1999
Karen D. Aldridge, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency
Karen D. Aldridge v. Department of the Army
01983698
June 23, 1999
Karen D. Aldridge, )
Appellant, )
) Appeal No. 01983698
v. ) Agency No. 97-04H-0180
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning 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.
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for stating the same claim that is pending before or has
been decided by the agency or Commission, for failure to state a claim,
and for failure to cooperate.
BACKGROUND
Appellant filed a formal complaint on March 9, 1998, alleging
discrimination on the basis of race (Black), sex (female), and reprisal
(unspecified)<1> when, in March 1997, her former supervisor (Supervisor)
gave appellant a memorandum that did not clearly communicate her duties
and responsibilities, was disrespectful and discourteous to her when she
asked him to explain the contents of the memo, and subjected appellant
to work related stress by failing to accept her as a team player, and
failing to show her respect. Appellant's formal complaint addendum also
alleged that the agency failed to provide mediation counseling.
The agency dismissed appellant's complaint, finding in its final agency
decision (FAD), dated March 13, 1998, that appellant's allegation that the
Supervisor did not clearly communicate her duties and responsibilities
had been alleged in a previous complaint,<2> and that her allegations
that the Supervisor was disrespectful and discourteous, and that she
experienced stress in the workplace failed to state a claim. The agency
dismissed appellant's allegation regarding mediation, finding that the
issue had not been through pre-complaint counseling, that the counselor
had unsuccessfully tried to contact appellant, and that appellant failed
to complete the EEO process and therefore forfeited her right to any
further EEO remedy on this issue.
ANALYSIS AND FINDINGS
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).
The Commission finds that appellant fails to demonstrate an injury or
harm, and therefore fails to state a claim when she alleges that the
Supervisor was disrespectful and discourteous to her, and that she was
subjected to work related stress, and not regarded as a team player.
Appellant's allegations rise from a single event: when the Supervisor
gave her a memorandum. Appellant fails to explain how the Supervisor
behaved disrespectfully to her, how that behavior caused work related
stress, or how his opinion of her affected any term, condition or
privilege of her employment.
Appellant is advised that her allegation concerning the agency's
failure to provide mediation is an allegation concerning the agency's
EEO complaint processing procedures. Such complaints concerning the
agency's EEO complaint processing should be brought to the attention of
the relevant officials in the agency's EEO office. See EEO Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110)(October 22, 1992) at 4-8.
The Commission remands to the agency for investigation appellant's
claim that the Supervisor did not clearly communicate her duties and
responsibilities to her. The Commission finds nothing in the record to
support the FAD's representation that this allegation is identical to
allegations appellant raised in a prior agency complaint. The record
contains neither a copy of the purported prior complaint nor a copy of
a decision by the agency or the Commission.
On remand, the Commission notes that it has long been established that
"identical" does not mean "similar." The Commission has consistently
held that in order for a complaint to be dismissed as identical, the
elements of the complaint must be identical to the elements of the prior
complaint in time, place, incident, and parties. See Jackson v. USPS,
EEOC Appeal No. 01955890 (April 5, 1996).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED in part, REVERSED
in part, and REMANDED for further processing in accordance with this
decision and the proper regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. 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 (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 23,1999
___________________________
DATE Carlton Haddon, Acting Director
Office of Federal Operations
1 Appellant previously filed agency complaint nos. 96-03G-0150 and
97-03H-0070.
2 Agency complaint number 96-03G-0150.