01993897
07-06-2000
Rosina A. Vacchiano, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rosina A. Vacchiano, )
Complainant, )
)
v. ) Appeal No. 01993897
) Agency No. 1-C-451-0026-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from an agency's decision
pertaining to her complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discriminatory
harassment based on her physical disabilities. Informal efforts to
resolve complainant's concerns were unsuccessful. Subsequently, on
December 24, 1998, complainant filed a formal complaint. The agency
framed complainant's claims of harassment as follows:
1) On September 18, 1998, the Manager in Plant Support made the comment
�You're no good to me�;
2) On September 29, 1998, the Manager, through a third party, assigned
complainant to be a key person (solicitor) to the Combined Federal
Campaign (CFC); and,
3) On October 1, 1998, the Manager harassed complainant about using the
telephone for a business call and then accused her of leaving work early
the previous day.
On March 4, 1999, the agency issued a decision dismissing the complaint
for failure to state a claim. Specifically, the agency determined that
complainant did not demonstrate how the alleged incidents resulted in
a personal loss or harm regarding a term, condition, or privilege of
her employment.
On appeal, complainant argues that the agency has misinterpreted her
complaint. With respect to claim 2, complainant contends that issuing
instructions through an intermediary regarding complainant's assignment to
the CFC position illustrates her Manager's lack of respect and courtesy.
Regarding claim 3, complainant contends that another employee's phone
use was similarly limited .
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
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, .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 the instant case, complainant contends that she was harassed by her
Manager. In support of her claim, complainant describes remarks made by
the Manager (claim 1), the manner in which the key worker assignment was
made (claim 2), and comments made regarding her phone usage (claim 3).
We find that the alleged incidents are not sufficient to state a claim
of harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment" is created when "a reasonable person
would find [it] hostile or abusive� and the complainant subjectively
perceives it as such. Harris, supra at 21-22. Thus, not all claims
of harassment are actionable. Where a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
Regarding claim 1, we note that the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Complainant has not shown that the Manager's remarks resulted in any
concrete agency action. Regarding claim 2, complainant states on appeal
that the alleged incident illustrates her Manager's �lack of respect
and courtesy.� Further, in claim 3, she contends that her phone use
was limited while others were not. However, she has not shown how the
incidents affected a term, condition, or privilege of her employment.
Further, we find that the alleged incidents are not sufficiently severe
or pervasive to state a claim of discriminatory harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision dismissing the complaint for failure
to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.