01983896
06-04-1999
Shirley A. Salazar, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shirley A. Salazar v. United States Postal Service
01983896
June 4, 1999
Shirley A. Salazar, )
Appellant, )
) Appeal No. 01983896
v. ) Agency No. 1-K-221-0034-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on February 9, 1998, alleging
discrimination on the basis of reprisal (prior EEO activity) when,
on November 4, 1997, she was asked by her supervisor about an incident
with another employee. Specifically, the supervisor wanted to know,
because of a previous physical altercation between appellant and the
other employee, if working together would cause a problem between the two.
Appellant claims that her supervisor's question created a hostile working
environment, constituted a continuing violation, and was a violation
of her right to privacy because he should not have had access to such
information.
In its final agency decision, the agency dismissed the complaint for
failure to state a claim when it concluded that the appellant was not
an aggrieved employee and that the Privacy Act is outside the purview
of Title VII and EEOC Regulations. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�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).
Upon reviewing the evidence in the file, the Commission concludes that
appellant was not an aggrieved employee. As we have frequently held,
"remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal
Service, EEOC Request No. 05940695 (February 9, 1995).
Because the appellant alleges only one incident, we find that the agency's
action did not create a hostile working environment. The Commission
has repeatedly found that allegations of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995).
The Commission does not consider whether or not the agency's action is
a continuing violation because doing so would be futile and irrelevant.
Firstly, the purpose of the continuing violation theory is to allow
a complainant to file claims for discriminatory events that would
otherwise be untimely. In this case, no timeliness issues are raised
with respect to the alleged discriminatory action. Secondly, in order
to prevail on a such a theory, the appellant must allege a series of
related discriminatory acts. Here, the appellant alleges only one
discriminatory event.
Finally, the Commission also finds that the agency correctly indicated
that whether an action violates the Privacy Act is not within the purview
of Title VII and other EEOC Regulations.
Accordingly, the decision of the agency was proper and is, therefore,
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
June 4, 1999
_______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations