0120114185
03-09-2012
Sheryl A. Peterson, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Sheryl A. Peterson,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120114185
Agency No. 115400313
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (FAD) dated August 18, 2011, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Correspondence Analyst at the Agency’s National Oceanic and
Atmospheric Administration facility in Washington DC. On July 21, 2011,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of race (African-American) when:
1. On April 28, 2011, during her mid-year performance review,
Complainant’s supervisor, (S) indicated that she had received multiple
complaints regarding Complainant’s tone and attitude both on the
telephone and in person and that she had heard that Complainant had
yelled at customers, had been "bossy" and had "order[ed] people around."
During the review, S advised Complainant of the availability of the
Employee Assistance Program if Complainant was having "personal-family
difficulties." S also recommended an anger management course or customer
service course that could give her additional "coping skills."
The Agency dismissed the claim for failure to state a claim and for
alleging that a proposed action was discriminatory.
CONTENTIONS ON APPEAL
Complainant argues that S should have brought up such issues at the
time rather than waiting and then bringing them up during her mid-year
performance appraisal so that Complainant could have presented her side
of the story. Complainant argues that by waiting until the mid-year
appraisal, S violated Agency rules. Complainant next argues that it
was inappropriate for S to ask if Complainant was having family or
personal problems. The Agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
We note that 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). To the extent Complainant is
complaining about S’s behavior in: waiting until the mid-year appraisal
to address the alleged complaints against Complainant; asking Complainant
if she had family or personal problems; recommending Complainant take
an anger management or customer service course; addressing the alleged
customer complaints against Complainant at all: we find that Complainant
fails to state a claim because Complainant has not shown how she was
harmed by such actions. While Complainant maintains that she was
“shocked and very tearful, depressed and upset” by S’s actions,
the Commission has long held that where an allegation fails to render an
individual aggrieved, the complaint is not converted into a cognizable
claim merely because Complainant alleges physical and/or emotional injury.
See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994).
Nor has Complainant shown that she was subjected to unwelcome verbal
or physical conduct involving her protected class, that the harassment
complained of was based on her statutorily protected class, and that the
harassment had the purpose or effect of unreasonably interfering with her
work performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982).
Finally, we note that, to the extent Complainant is complaining about
the mid-year appraisal she received, as opposed to the comments made
by S, the Commission has held that periodic performance reviews which
are not recorded in the employee's official personnel folder do not
constitute adverse actions. See Jackson v. Central Intelligence Agency,
EEOC Request No. 05931177 (June 23, 1994). In the instant complaint,
Complainant makes no allegation that the mid-year review was recorded
in her official personnel folder or that it was used as a basis for her
final year-end review. Accordingly, we find that Complainant fails to
state a claim and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2012
__________________
Date
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0120114185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114185