01983877_r
05-17-1999
Linda G. Fleming, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.
Linda G. Fleming, )
Appellant, )
) Appeal No. 01983877
v. ) Agency No. DIS-98-014-53R
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Security Service), )
Agency. )
)
DECISION
On April 16, 1998, appellant filed a timely appeal from a March 25,
1998 final agency decision which dismissed her complaint for failure
to state a claim.
In her February 11, 1998 complaint, appellant alleged that she was
discriminated against on the bases of sex (female) and in reprisal
(prior EEO activity) when in January 1998, she was informed by Person
A that Person B had shared information with Person A regarding an EEO
complaint of appellant. Appellant alleged that Person B misrepresented
events detailed in her EEO complaint and maligned her by providing
damaging and false information to Person A. Appellant specifically
alleged that Person B told Person A that she was yelling at Person B
and that Person B's statement was not true. Appellant also alleged
that Person A was not in a position in which he needed to know about
her complaint and that only two persons had access to her complaints,
Persons C and D.<1> She further alleged that the incident constituted
ongoing harassment and a violation of her privacy.
In dismissing the complaint, the agency noted that appellant failed to
establish that she had suffered a loss or harm with respect to a term,
condition, or privilege of his employment. The agency also noted that
since appellant was no longer an agency employee, she lacked standing
to pursue her claim.<2>
On appeal, appellant asserts that her complaint is directly related to
other EEO complaints under investigation because all of her complaints
allege a consistent pattern of retaliation and a hostile work environment.
Appellant further asserts that the agency's alleged release of personal
information to Person B pertaining to her EEO complaint was another
example of the agency's retaliation against her.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall
accept a complaint from any aggrieved employee who believes that he or
she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or a disabling condition. See 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). Even where
a complaint does not challenge an agency action or inaction regarding
hiring, termination, compensation or any other specific term, condition,
or privilege of employment, the complaint may still state a claim if
the complaint allegations are sufficient to state a hostile or abusive
environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Upon review, we find that the agency's dismissal of appellant's
complaint for failure to state a claim was proper. Appellant failed to
demonstrate that the alleged January 1998 incident resulted in a harm
that can be remedied. In addition, although appellant alleged that the
alleged event was another incident of continuing harassment, the record
contains only one other EEO complaint, dated January 24, 1997, wherein
appellant alleged a hostile work environment and she identified alleged
discriminatory incidents that occurred in October 1996 and November 1996,
over a year prior to the incident in the complaint at hand. Even when
considered in conjunction with her prior complaint, we do not find that
appellant has alleged facts, which if proven to be true, would indicate
that she was subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of her employment. Although appellant
also alleged that the actions of Person B maligned and humiliated her, the
Commission has held that, when an allegation fails to render a complainant
aggrieved for purposes of Title VII and the EEOC Regulations, it will
not be converted into a processable claim merely because the complainant
has requested specific relief in the form of compensatory damages.
See Girard v. Department of the Treasury, EEOC Request No. 05940379
(September 9, 1994); Larotonda v. U.S. Postal Service, EEOC Appeal
No. 01933846 (March 11, 1994).
Consistent with the foregoing discussion, the agency's final decision
is AFFIRMED.
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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
1Persons C and D were identified as agency employees. The record reflects
that neither was the EEO Counselor.
2It appears that although appellant no longer worked for the agency's
Defense Security Service, that she is still employed by the agency.