01a01377
06-01-2000
Terri J. Cannon, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Terri J. Cannon, )
Complainant, )
)
v. ) Appeal No. 01A01377
) Agency No. 99-4327
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated October 26, 1999
dismissing complainant's is proper for the reasons set forth herein.<1>
In her complaint, complainant, a Personnel Assistant, alleged that: (1)
on June 21, 1999, during a mid-year feedback session, her supervisor
did not recognize the work she had accomplished and told her that
she was not supportive of a Personnel program; (2) on June 22, 1999,
the supervisor admonished her coworkers, other Personnel Assistants,
for not being assertive and breaking down Standard Form 50s that were
on top of a credenza; (3) on June 23, 1999, the supervisor berated her
coworkers for not rearranging the Official Personnel Files (OPF) in the
OPF drawers; (4) on June 24, 1999, the supervisor told her coworker
in a disrespectful tone about the OPFs she had left on her desk; and
(5) the supervisor told complainant that he hoped that his friendship
with another employee would not be a problem in the office and accused
complainant of saying that the other employee was his watchdog.
In its final decision, the agency found that complainant failed to
show that she was aggrieved by the incidents raised and dismissed the
complaint pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).
EEOC Regulation 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 22, 1994).
With regard to claims (2), (3), and (4), the Commission finds that the
alleged incidents concern third parties, complainant's coworker(s).
Since these adverse actions were not directed toward complainant, she
is not an aggrieved individual with regard to the alleged incidents.
Thus, the Commission finds that the subject claims fail to state a claim.
Claim (5) involves the accusation made by complainant's supervisor. The
Commission has consistently held that a remark or comment unaccompanied
by 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). Thus,
the Commission finds that claim (5) fails to state a claim within the
purview of the regulations.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(5)) provides, in relevant part,
that an agency shall dismiss a complaint that alleges that a preliminary
step to taking a personnel action is discriminatory. With regard to claim
(1), the Commission finds that the alleged mid-year feedback session is a
preliminary action, i.e., a preliminary step to a performance appraisal.
See Jackson v. Central Intelligence Agency, EEOC Request No. 05931177
(June 23, 1994). Consequently, the Commission finds that claim (1)
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).
Accordingly, the agency's decision is hereby AFFIRMED for the reasons
set forth herein.
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:
June 1, 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.