0120101111
06-15-2010
Jean-Marie V. Saite, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Jean-Marie V. Saite,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120101111
Agency No. FBI200900291
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 3, 2009, dismissing her 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.
BACKGROUND
In her complaint, Complainant, a Special Agent serving as the Training
Coordinator, alleged that she was discriminated against based on her race
(Caucasian) when on September 10, 2009, the Supervisory Administrative
Specialist (SAS), who is in charge of the Communication Center, spoke
rudely to her, placed a sticky note with the word "prejudice" on the
floor in front of her office, and told co-workers that she was prejudiced
and racist.
Specifically, a review of the counselor's report and the complaint show
Complainant contended that the SAS rudely confronted her about Complainant
asking a Communication's Center employee to do a presentation without
first going through the SAS, even though the SAS previously suggested
to Complainant that she coordinate with the employee. The note was
left later in the day of the confrontation. Complainant alleged that
the next day Co-worker 1, who sits in an office next to her, said that
the SAS told him that she thought Complainant was racist and prejudiced.
Complainant alleged that on September 11, 2009, the SAS told the Financial
Manager that complainant was racist and prejudiced against black women in
power. Complainant indicated that the Financial Manager defended her.
The agency dismissed the complaint for failure to state a claim.
It reasoned that Complainant was not harmed.
CONTENTIONS ON APPEAL
Complainant reiterates her prior claim, and argues it constitutes
harassment. She contends that the SAS has attempted to dishonor,
disgrace, and discredit her and has created a hostile and offensive
work environment. She adds for the first time that a Co-worker (appears
to be Co-worker 1) told her that prior to this incident, the SAS called
Complainant a racist on several occasions, and has called others in the
office racist. Complainant also adds for the first time that while the
SAS includes her in communications on training for the Communications
Center, she does not acknowledge or look at her when they pass each
other, and their offices are two doors apart. Complainant writes that
the Co-worker has complained the SAS also does not look at him, even
though his office is next door to the SAS. In opposition to the appeal,
the agency argues that its final decision should be affirmed.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, 510 U.S. at 21-22. Thus, not all claims of harassment
are actionable. 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, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
Applying the above standards, we find that Complainant's complaint does
not rise to the level of actionable harassment because the SAS's actions,
as alleged in her complaint, are not sufficiently pervasive to alter the
conditions of Complainant's employment. See Bilger v. United States
Postal Service, EEOC Appeal No. 01A41985 (May 26, 2004) (on a certain
date a co-worker called the appellant a racist and hood). We observe
that Complainant did not raise the matter of the SAS not acknowledging
or looking at her with the EEO counselor or in her complaint.
The agency's final decision 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
June 15, 2010
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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