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