01981909
03-02-1999
Karen M. Arnold, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Karen M. Arnold v. Department of the Treasury
01981909
March 2, 1999
Karen M. Arnold, )
Appellant, )
)
v. ) Appeal No. 01981909
) Agency No. TD 97-3285
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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 final agency decision was received by
appellant on December 17, 1997. The appeal was postmarked January 2,
1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on July 17, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) the terms and conditions of the NTEU agreement do not apply to her
because she is a female and African American;
(2) on July 10, 1997 she was harassed when the Chief Union Steward shoved
a propaganda flyer in her hand;
(3) she was not paid interest on three travel advances that the agency
held from May 1995 until July 23, 1997;
(4) the EEO Counselor ignored the informal counseling procedures and
refused to provide her with the initial counseling forms;
(5) the EEO Counselor tried to bully and intimidate her into signing an
incomplete Notice of Right to File a Discrimination Complaint form;
(6) on July 21, 1997 the EEO Counselor attempted to discourage and
restrain her from filing a complaint; and
(7) the EEO Counselor was not fair, objective and impartial.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on August 15, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the basis of reprisal (prior EEO activity).
On December 16, 1997, the agency issued a final decision accepting for
investigation allegation (3) of appellant's complaint but dismissing
the remaining allegations for failure to state a claim. Specifically,
the agency determined that appellant failed to demonstrate that she was
an aggrieved employee or that she had been harmed with respect to a term,
condition, or privilege of employment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
may dismiss a complaint which fails to state a claim pursuant to
29 C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title
VII (discrimination on the bases of race, color, religion, sex
and national origin), the ADEA (discrimination on the basis of age
when the aggrieved individual is at least 40 years of age) and the
Rehabilitation Act (discrimination on the basis of disability) shall
be processed in accordance with Part 1614 of the EEOC Regulations. To
establish standing as an "aggrieved employee" within the context
of 29 C.F.R. �1614.103, appellant must allege, first of all, that
she has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447
(3rd Cir. 1971). Specifically, appellant must allege some direct harm
which affects a term, condition, or privilege of employment. See Riden
v. the Department of the Treasury, EEOC Request No. 05970314 (October
2, 1998). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer," that is, a present
and unresolved harm or loss affecting a term, condition or privilege
of her employment. Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are whether the complainant is an
aggrieved employee and whether she has alleged employment discrimination
covered by the EEO statutes. The agency submits that appellant is not
aggrieved because she has not alleged personal injury caused by the
agency. The Commission agrees. Appellant's complaint does not allege
that the agency took any action which affected the terms, conditions,
or privileges of her employment. A review of the record indicates that
appellant in allegations (1) and (2) is collaterally attacking the union
agreement and alleging discriminatory action by an employee acting in his
role as a union official. These allegations do not rise to the level
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Under these circumstances,
we conclude that appellant has failed to state a claim within the meaning
of 29 C.F.R. �1614.103.
With respect to allegations (4), (5), (6) and (7) we determine that
appellant is stating her dissatisfaction with the processing of her
complaint and has failed to state a claim within the provisions of EEOC
Regulations because she has not shown that she is aggrieved. See Steeves
v. Department of the Navy, EEOC Appeal No. 01956381 (May 14, 1996).
Appellant should raise her concerns regarding the case processing with the
agency official responsible for the quality of case processing pursuant
to EEO MD-110.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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 (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:
Mar 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations