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.