0120093433
10-22-2009
Elba Torres-Mojica, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Elba Torres-Mojica,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120093433
Agency No. BOP-2009-0402
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 22, 2009, dismissing her formal 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.
On May 12, 2009, complainant filed the instant formal complaint. Therein,
complainant alleged that she was subjected to discrimination in reprisal
for prior EEO activity.
On July 22, 2009, the agency issued the instant final decision.
The agency determined that complainant's complaint was comprised of the
following claim:
complainant was relocated from Building 4 to the Warehouse on March 20,
2009, until after Building 4 was cleaned; and she had "informed management
on numerous occasions to clean" Building 4 as the unsanitary conditions
were beginning to affect her health.
The agency dismissed the formal complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency stated that a review
of the record indicates that complainant's relocation to the Warehouse
was only temporary (March 20, 2009 to April 23, 2009), until after
the proper cleaning equipment was ordered and Building 4 was cleaned.
The agency further found that the alleged acts did not rise to the level
of harassment.
The regulation set forth at C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition or privilege of employment for which there is
a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term,
condition or privilege of his employment. The agency properly
dismissed the instant complaint for failure to state a claim. Moreover,
the alleged incident was not sufficiently severe or pervasive to state
a claim of discriminatory harassment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the
alleged agency action was not of a type reasonably likely to deter
complainant or others from engaging in protected activity.
Accordingly, the agency's final decision dismissing the instant complaint
for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 22, 2009
__________________
Date
2
0120093433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093433