Florastine Smith, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 28, 2000
01992906 (E.E.O.C. Jan. 28, 2000)

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.