01986499
09-22-1999
Deborah J. Jacobs, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Deborah J. Jacobs v. Department of the Navy
01986499
September 22, 1999
Deborah J. Jacobs, )
Appellant, )
)
v. ) Appeal No. 01986499
) Agency No. 98-67001-031
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On August 25, 1998, appellant filed a timely appeal of a July 17, 1998
final agency decision, which was received by appellant on July 27,
1998, dismissing her complaint, pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim.
In its final decision, the agency identified the allegation of appellant's
July 2, 1998 complaint as whether appellant was discriminated against
based on her sex (female) when on March 23, 1998, she was told that she
would be "written up" if she did not get a hair cut by March 27, 1998,
under a newly adopted standard of appearance code for firefighters.
The agency indicated that as appellant complied with the new standard,
and she had not been "written up," she was not aggrieved.
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.
The Commission has held that an employee is aggrieved when one suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1997).
Upon review, we find that appellant is not aggrieved since the record
indicates that appellant has not been issued any disciplinary action as
a result of the allegedly discriminatory standard of appearance code.
With regard to employees' appearances, the Commission has held that
"[a]n employer may establish a dress code with different standards
for men and women to create a proper decorum or neat and professional
atmosphere without necessarily violating Title VII." Baker v. USPS,
EEOC Request No. 05910402 (June 21, 1991)(complainant fails to state a
claim in alleging he was made to wear a necktie, while female employees
were not). Further, in Henderson v. USPS, EEOC Request No. 05910228
(April 11, 1991), the Commission noted that "[i]t is well-established in
the Federal Courts of Appeal that different grooming standards for men
and women, such as hair length requirements for males and not for females,
do not constitute sex discrimination under Title VII because they pertain
to mutable characteristics which can be readily changed by the affected
individual." Furthermore, in the present case, we note that it appears
that the identified standard was being applied to both females and males.
Consequently, the complaint appears to involve a generalized grievance
shared substantially by all agency firefighters, both male and female
employees. See Warth v. Seldin, 422 U.S. 490 (1975).
Accordingly, the final agency decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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:
September 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations