0120093688
12-18-2009
Deborah C. Epps, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Deborah C. Epps,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120093688
Agency No. 2009-22690-FTA-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 25, 2009, dismissing her formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On June 13, 2009, complainant filed a formal complaint. Therein,
complainant claimed that she was subjected to harassment and a hostile
work environment on the bases of color and in reprisal for prior EEO
activity when:
1. on June 5, 2009, her manager asked her "which one is the fax machine,"
and earlier that day the Administrator asked, "what do I dial to fax;"
2. on March 27, 2009, she learned that contractors had complimented
her professionalism and had informed her supervisor, but he never said
anything to her about it;
3. while passing each other in the hallway her supervisor said, "go
ahead." Complainant felt it was a poor choice of words and his tone
was unprofessional;
4. on March 2, 2009, S1 was rude to her, in that, while being moved to
his temporary office space that was adjacent to her office, he told the
movers "I want my back to the door;"
5. on April 9, 2009, she learned that the reason she had not been asked
to update the Mass Mail-outs on the Region II website was that the
Administrator was not signing off on the completed Mass Mail-outs;
6. on April 17, 2009, she continued to notice that people were leaving
objects in front of the file cabinets in spite of her having sent out
an email to everyone on the matter. Complainant believes management is
not taking the matter seriously;
7. on March 4, 2009, the Administrator told her, "I think you are doing
a lot of work for nothing" in reference to her effort to archive records
to the records center;
8. on March 6, 2009, although she received an award, the Administrator
did not publicly acknowledge the work she did on the Combine Federal
Campaign (CFC);
9. on February 26, 2009, the Administrator failed to include her in a
meeting on civil rights assuming she would be covering the telephones;
10. on February 19, 2009, during renovations of the office space she was
sharing a cubicle with another employee, while she returned from being out
sick her desk had been moved outside of the cubicle. The Administrator
came up to her and said "let see, what am I going to do with you."
Complainant did not appreciate her choice of words;
11. on February 10, 2009, the Administrator entered the cubicle she was
sharing with another employee and spoke to him saying "Good morning [named
employee] how are you." The Administrator failed to acknowledge her.
On June 25, 2009, the agency issued a final decision dismissing the
instant complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency determined that complainant
failed to demonstrate that she suffered harm to a term, condition or
privilege of her employment. The agency further found that the alleged
acts did not rise to the level of harassment.
The regulation set forth at 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 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 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, All
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
Title VII is not a general civility code. Rather, it forbids "only
behavior so objectively offensive as to alter the conditions of
the victim's employment." Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 81 (1998). In viewing the alleged events as a
whole, and assuming them to be true, we find that these incidents
are not sufficiently severe or pervasive to state a viable claim of
harassment/hostile work environment. Moreover, the alleged agency action
was not of a type reasonably likely to deter complainant or others from
engaging in protected activity. As such, we find that the agency's
final decision properly dismissed the complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing the instant complaint
for failure to state a claim is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2009
__________________
Date
CERTIFICATE OF MAILING
1 On appeal, complainant raised new claims. We note that complainant
acknowledges that most of the "negative actions" of the agency
Administrator do not affect a term, condition or privilege of her
employment. Complainant, however, indicates, for example, that not being
allowed to process grants has significantly reduced her career prospects.
The Commission has held that it is not appropriate to raise new claims
for the first time on appeal. See Hubbard v. Department of Homeland
Security, EEOC Appeal No. 01A40449 (April 22, 2004). Should she wish to
pursue these claims, complainant is advised to contact an EEO Counselor
to begin the administrative process.
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0120093688
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093688