Donna Small, Complainant,v.David J. Barram, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionMay 8, 2000
01981153 (E.E.O.C. May. 8, 2000)

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.