Diane H. Dyers, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01994949 (E.E.O.C. Nov. 9, 2000)

01994949

11-09-2000

Diane H. Dyers, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Diane H. Dyers v. Department of Veterans Affairs

01994949

November 9, 2000

.

Diane H. Dyers,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01994949

Agency No. 98-4392

DECISION

Complainant filed a timely appeal with this Commission from an agency's

May 4, 1999 decision to dismiss her 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. In her complaint,

complainant alleged that she was subjected to discrimination on the

bases of race (Caucasian) and in reprisal for prior EEO activity when:

A coworker called complainant a �white bitch� and informed complainant

that she would see complainant in the parking lot; and

Complainant's supervisor stated �You brought in a picture of the black

husband, flaunted it and it upset my staff.�

The agency dismissed the complaint for failure to state a claim, finding

that the claims involved isolated incidents insufficient to rise to the

level of harassment. The Commission agrees.

To state a claim, complainant must allege present harm inflicted on

the basis of race, sex, religion, national origin, age, disability, or

prior protected activity. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (Apr. 21, 1994). In claims of harassment,

the matter alleged must be sufficiently severe and pervasive as to

affect complainant's employment. See Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993). Unless the conduct is very severe, a single

incident or group of isolated incidents will not constitute actionable

harassment. See James v. Department of Health and Human Services, EEOC

Request No. 05940327 (Sept. 20, 1994). Even when considered together,

the claims raised by complainant are not severe enough to state a claim.

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 9, 2000

__________________

Date