01992906
01-28-2000
Florastine Smith, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Florastine Smith v. Department of the Navy
01992906
January 28, 2000
Florastine Smith, )
Complainant, )
)
v. ) Appeal No. 01992906
) Agency No. 98-62793-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1>
ISSUES PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
On June 28, 1998, one of complainant's coworkers (C-1) overheard a
supervisor of another department (S-1) refer to everyone in complainant's
office by an offensive name.<2> When C-1 confronted S-1 about his
action, he allegedly used several other offensive names to describe the
staff of complainant's office.
Appellant filed a formal complaint on September 3, 1998, alleging
discrimination based on race (black). On December 11, 1998, the agency
issued a FAD dismissing complainant's complaint for failure to state
a claim. This appeal followed.<3>
ANALYSIS AND FINDINGS
Failure to State A Claim
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 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 that 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).
Where a complainant does not suffer a present harm or loss regarding
a term, condition, or privilege of employment, he or she may still be
aggrieved where the complaint claims, taken together and treated as
true, are sufficient to state a hostile or abusive environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). A hostile or abusive work environment claim requires that a
complainant allege facts which, if proven true, may indicate that the
complainant was subjected to harassment that was severe or pervasive
enough to alter the conditions of his or her employment. Id. at 3.
In making such a determination, the Commission has considered "whether
a reasonable person in the complainant's circumstances would have found
the alleged behavior to be hostile or abusive." Id.
To substantiate her claim, complainant alleged that S-1 referred to
her and her coworkers, most of whom are black, by offensive names.
Complainant was not aggrieved by S-1's oral remarks. Suttles v. United
States Postal Service, EEOC Request No. 05970496, (April 8, 1999).
Nor were S-1's remarks, which were not made in the presence of complainant,
sufficient to constitute a hostile or abusive environment. Cobb, at 2.
Accordingly, the agency's dismissal is affirmed.
CONCLUSION
It is the Commission's decision to AFFIRM the agency's dismissal of
complainant's complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Jan 28, 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 of mailing. I certify that
the 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.
2Eight of the ten people about whom the supervisor spoke are black.
3In her appeal, complainant indicated her complaint should not be
dismissed because she has approximately seven related EEO investigations
either completed or pending. There was no evidence supporting this
statement in the record and our records indicate only one appeal (Appeal
number 01942971), which is closed.