01a51780
03-31-2005
Eleanor E. Williams, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Eleanor E. Williams v. Department of Defense
01A51780
March 31, 2005
.
Eleanor E. Williams,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A51780
Agency No. DFAS-IN-CP-04-073
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. Sec. 1614.107(a)(1) for failure
to state a claim. In a complaint dated July 1, 2004, complainant alleged
that she was subjected to discrimination on the basis of reprisal for
prior EEO activity when a co-worker sent an email message accusing her
of misfeasance and malfeasance.
The agency determined that standing alone, without follow-up agency
action, the alleged inflammatory remarks made in the email were not
direct and personal deprivations sufficient to render the complainant
aggrieved under the Title VII of the Civil Rights Act of 1964 (Title VII),
as amended 42 U.S.C. Sec. 2000e et seq. Upon review of the facts in the
record, the Commission finds that the complaints were properly dismissed
pursuant to 29 C.F.R. Sec. 1614.107(a)(1).
Under EEOC regulations, an agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition. See
29 C.F.R. Secs. 1614.103, 106(a) (2004). The Commission's federal
sector case precedent has long found an "aggrieved employee" to be one
who "has suffered direct and personal deprivation at the hands of the
employer." Gilyard v. Department of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Department of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994) (defining 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.)
In the instant case, complainant failed to demonstrate that the alleged
inflammatory email resulted in a harm or loss that affected a term,
condition, or privilege of their employment. Nevertheless, where a
complaint does not challenge an agency action or inaction regarding
a specific term, condition, or privilege of employment, a claim of
harassment is actionable only if it is sufficiently severe or pervasive
to alter the conditions of the complainant's employment. See, e.g.,
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997). Whether the harassment is sufficiently severe to trigger a
violation of EEOC statutes must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Examining the facts based
on these standards, it is clear that the dissemination of the email
on April 21, 2004 is not a sufficiently severe or pervasive form of
harassment that had any effect on complainant' employment, and as such,
it is not an actionable claim.
Accordingly, the Commission finds that the complainant failed to state
a claim and AFFIRMS the agency's dismissal of the complaints.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
March 31, 2005
__________________
Date