Debby J. Roberts, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJul 11, 2000
01a03269 (E.E.O.C. Jul. 11, 2000)

01a03269

07-11-2000

Debby J. Roberts, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Debby J. Roberts v. Defense Logistics Agency

01A03269

July 11, 2000

Debby J. Roberts, )

Complainant, )

)

v. ) Appeal No. 01A03269

) Agency No. JQ00033

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated March 3, 2000, dismissing 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.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

The record reveals that on January 12, 2000, complainant initiated contact

with an EEO Counselor. During the counseling period, complainant claimed

that she was the victim of sexual harassment when her supervisor, during

a meeting stated �that you all have to get up off your snatches�.

Counseling failed, and on February 8, 2000, complainant filed a formal

complaint claiming that she was the victim of unlawful employment

discrimination on the bases of her race (Caucasian), gender (female)

and in reprisal for prior EEO activity when:

During a meeting, complainant's supervisor stated �that you all have

to get up off your snatches�; and

In October 1999, complainant was not selected for a packer position.

On March 3, 2000, the agency dismissed the present complaint.

Specifically, the agency dismissed claim one for failure to state a

claim and claim two for not raising it before an EEO Counselor.

As an initial matter, claim two was properly dismissed by the agency

pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2))

which states, in pertinent part, that an agency shall dismiss a complaint

which raises a matter that has not been brought to the attention of an EEO

Counselor, and is not like or related to a matter on which the complainant

has received counseling. A later claim or complaint is "like or related"

to the original claim or complaint if the later claim or complaint adds

to or clarifies the original claim or complaint and could have reasonably

been expected to grow out of the original claim or complaint during the

investigation. See Scher v. United States Postal Service, EEOC Request

No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service,

EEOC Request No. 05891068 (March 8, 1990). In this case, the Commission

finds, that claim two, which was not brought to the attention of the EEO

Counselor, is not like or related to the matter for which complainant

received counseling. In addition, claim two does not add to or clarify

the original claim and cannot be reasonably expected to grow out of

the original claim during the investigation. Accordingly, the agency's

decision dismissing this claim pursuant to 29 C.F.R. � 1614.107(a)(2)

was proper and is AFFIRMED.

With respect to claim one, it is well-settled that, unless the conduct is

very severe, a single incident or a group of isolated incidents will not

be regarded as creating a discriminatory work environment. See James

v. Department of Health and Human Services, EEOC Request No. 05940327

(September 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th

Cir. 1982). In the instant complaint, we find that complainant failed

to show that she suffered harm with respect to the terms, conditions

or privileges of her employment as a result of claim one. Therefore,

standing alone, claim one fails to state a claim. Additionally, even

when viewed within the context of a claim of sexual harassment and

in a light most favorable to complainant, claim one is too isolated

and insufficiently severe to establish a hostile work environment.

Accordingly, the agency's decision to dismiss claim one pursuant to

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited

as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim was proper

and is AFFIRMED.

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:

July 11, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

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.