Shirley A. Babick, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 17, 2001
01A14334_r (E.E.O.C. Dec. 17, 2001)

01A14334_r

12-17-2001

Shirley A. Babick, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Shirley A. Babick v. Department of the Navy

01A14334

December 17, 2001

.

Shirley A. Babick,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A14334

Agency No. 01-68850-002

DECISION

Complainant filed an appeal with this Commission from a final agency

decision (FAD) of the agency pertaining to 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 and the

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. The Commission accepts the appeal in accordance

with 29 C.F.R. � 1614.405.

Believing that she was the victim of discrimination based on sex and age,

complainant contacted the EEO office. Informal efforts to resolve her

concerns were unsuccessful.

On May 3, 2001, complainant filed a formal complaint. Therein,

complainant claimed that she was discriminated against when:

(1)(a) a military officer issued a direct order to downgrade

complainant's position, and did not issue the same order for a male

employee who had received a promotion under procedures similar to her

promotion;

(1)(b) derogatory remarks resulted in a personal investigation of her

and her position description;

(1)(c) she was denied a copy of the official report of findings,

resulting from the investigation; and

(1)(d) the Agency provided Privacy Act information on complainant and

subordinate female employees in response to a Freedom of Information Act

(FOIA) request, while information on a male employee was not provided.

On May 31, 2001, the agency dismissed claims (1)(a), (b) and (d)

for failure to state a claim. The agency determined that complainant

did not allege a personal loss or harm regarding a term, condition

or privilege of her employment. Specifically, regarding claim 1(a),

the agency noted that complainant has not been downgraded.

The agency also dismissed claim (1)(c) for failure to state a claim and on

the alternative grounds of mootness. The agency determined that there has

been no harm to complainant regarding the matter raised in claim (1)(c).

Moreover, the agency determined that because complainant received a

redacted copy of the investigation file she requested, complainant's

claim no longer presented a live controversy and was therefore moot.

On appeal, complainant reiterates that her complaint was improperly

dismissed. Complainant argues that her claims state a claim.

Complainant specifically argues that �the agency has intentionally

withheld information that will substantiate the complainant's claim

and prove that the agency is protecting [a named agency official].�

Regarding the matter raised in claim 1(a), complainant acknowledged

that the �talk of downgrading finally stopped. . . � after the agency

purportedly determined that consideration to downgrade complainant was

not appropriate.

In response, the agency restates the position it took in its FAD, and

requests that we affirm its final decision.

The regulation set forth at 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).

With respect to claim (1)(a), the action asserted by complainant in her

complaint has not been instituted, and that complainant's position was

not downgraded. The Commission finds that the complaint fails to state

a claim under 29 C.F.R. Part 1614 because the claim, even if proven to be

true, would not indicate that complainant has been subjected to harassment

that was sufficiently severe or pervasive to alter the conditions of

her employment. Moreover, the complaint does not otherwise challenge

an unlawful employment policy or practice. See Cobb v. Department of

the Treasury, Request No. 05970077 (March 13, 1997).

Regarding claim (1)(b), the Commission finds that the agency properly

dismissed it for failure to state a claim. The Commission has

consistently held that a remark or comment unaccompanied by a concrete

action is not a direct and personal deprivation sufficient to render

an individual aggrieved for the purposes of Title VII. Henry v. USPS,

EEOC Request No. 05940695 (February 9, 1995). We find that complainant

has failed to identify a harm or loss to a term, condition or privilege

of her employment.

With respect to complainant's claim (1)(c) that she was denied a copy

of the official report of findings, resulting from the investigation,

the record shows that complainant was provided a redacted copy of the

investigation file she requested. The Commission finds that complainant

has failed to establish that she suffered a present harm or loss with

respect to a term, condition or privilege of her employment for which

there is a remedy.

Regarding claim (1)(d), the Commission has held that it does not have

jurisdiction over the processing of FOIA requests. Instead, persons

having a dispute regarding such requests should bring any appeals

about the processing of their FOIA requests under the appropriate

FOIA regulations. See Gaines v. Department of the Navy, EEOC Request

No. 05970386 (June 12, 1997). Therefore, the Commission finds that claim

(1)(d) was properly dismissed for failure to state a claim.

Accordingly, the agency's final decision dismissing complainant's

complaint for failure to state a claim is AFFIRMED.

Because we affirm the agency decision for the reason stated herein,

we find it unnecessary to address the agency decision to dismiss claim

(1)(c) on alternative grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 17, 2001

__________________

Date