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