01981153
05-08-2000
Donna Small, Complainant, v. David J. Barram, Administrator, General Services Administration, Agency.
Donna Small v. General Services Administration
01981153
May 8, 2000
Donna Small, )
Complainant, )
)
v. ) Appeal No. 01981153
David J. Barram, ) Agency No. 976FSSDRS02
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), reprisal (prior EEO activity), and age (DOB:
4/9/37) in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et
seq.<1> Complainant alleges she was discriminated against when: (1)
she was subjected to a hostile work environment and (2) she was treated
differently by managers and co-workers. The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supply Systems Analyst at the agency's National Customer
Service Center in Kansas City, Missouri. Complainant alleged that 1)
her desk was located in a small, dark and noisy corner of the office; 2)
some of her co-workers made offensive comments to her; 3) she was watched
constantly by management; 4) she was not given appropriate training;
and 5) she was given assignments that involved clerical functions which
were not appropriate for your job title, grade level and experience.
Believing herself to be a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on April 30, 1997.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant failed to prove her claim of
harassment, finding that complainant "failed to show that any actions
taken by management related to [her] sex, age or prior EEO activity" and
that a "reasonable person would not conclude that a hostile atmosphere
exists that relates to any discriminatory factors."
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986) and Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993) the Commission concludes that complainant failed
to establish a prima facie case of harassment based on her sex, age or
retaliation for prior EEO activity. We find that she did not prove by a
preponderance of the evidence that she had been subjected to harassment
of such a nature that "a reasonable person would find [it] hostile or
abusive." Harris, supra, at 21-22. Although complainant identified
a series of events and circumstances she found to be unpleasant or
demeaning, these appear to us to result from the sort of unremarkable
disappointments and disagreements that inevitably occur in the workplace.
They are not so severe or pervasive as to entitle complainant to relief
under the federal employment discrimination laws. See Lynch v. United
States Postal Service, EEOC Appeal No. 01981027 (July 16, 1999).
In addition, complainant has adduced no competent evidence from which we
could conclude that she was forced to endure the situations she describes
because of her sex, her age or her prior EEO activity. Complainant's
proof is limited to her own speculation and hearsay generalities.
For example, complainant avers without elaboration that her supervisor
"has a long and well known history of this type of adverse actions toward
middle age and older women, especially single women, and minorities."
Complainant cites no first-hand evidence to support this proposition.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.<2>
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:
May 8, 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 after it was mailed. I certify
that this 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.
2As we noted above, complainant alleged in her complaint that " she was
treated differently by managers and co-workers." If, by these words,
complainant sought to raise a claim of disparate treatment, she has
now abandoned any such claim. Her submissions during the course of the
investigation do not appear to relate to a claim of disparate treatment.
The FAD does not address disparate treatment. On appeal, complainant,
who is represented by counsel, makes no argument based on a disparate
treatment theory. The theory, not having been pursued, will not be
addressed by us.