Judi S.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 9, 2016

0120151670 (E.E.O.C. Sep. 9, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Judi S.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120151670

Agency No. ARTRADOC14DEC04622

DECISION

Complainant appealed from the Agency’s final decision dated March 31, 2015, dismissing
Complainant’s complaint. Upon review, we find the Agency’s dismissal of her complaint
proper pursuant to 29 C.F.R. §1614.107(a)(1).

In her complaint, filed on March 16, 2015, Complainant, a Human Resources Assistant,
alleged discrimination based on sex (female) and in reprisal for prior EEO activity when:

(1) She was harassed by her supervisor on May 6, 2014, when he repeatedly cursed at her;
and
(2) On November 17, 2014, she overheard the supervisor discussing disciplinary actions he
was going to take against her with two other officials. They discussed if someone calls
them for a supervisor reference that they would say she talks too much, she does not do
her work, and how she will never get another government job.

With regard to claim (1), Complainant claimed that on May 6, 2014, the supervisor, during
their discussion concerning an identified Cadet’s reinstatement of his driving privileges, said to
her, “I’m not fucking [an identified official,] I tell you what to fucking do, I make the fucking
decisions.” Complainant acknowledged that later on that day, the supervisor apologized to her
and explained to her that he forgot that she was a civilian and he cursed soldiers and he

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120151670

2
explained an incident when a supervisor cursed him out. Complainant does not claim that she
was subjected to any similar remarks, as she described here, on the part of the supervisor on
another occasion other than on May 6, 2014.

With regard to claim (2), Complainant acknowledged that she merely overheard the comments
at issue. There is no evidence that she was actually subjected to a negative supervisor
reference or was denied a government job thereafter.

After a review of the record, we find that Complainant was not aggrieved with regard to a
term, condition or privilege of her employment as a result of the alleged incidents. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Although
Complainant claimed that the alleged incident constituted harassment, the Commission does not
find that the alleged actions were sufficiently severe or pervasive to alter the conditions of her
employment such as to state a claim of harassment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Based on the foregoing, we find that Complainant’s complaint failed to
state a claim. See 29 C.F.R. § 1614.107(a)(1).

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.2

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In

2 Although the Agency in its final decision dismissed claim (1) due to untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2), we do not need to address the untimeliness of
claim (1) in this decision.
0120151670

3
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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 9, 2016
Date