Linda J. Breshears, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01A01056 (E.E.O.C. Dec. 8, 2000)

01A01056

12-08-2000

Linda J. Breshears, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Linda J. Breshears v. U.S. Department of the Air Force

01A01056

December 8, 2000

.

Linda J. Breshears,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A01056

Agency No. AL900000153

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1> In a

complaint dated August 24, 1999, the complainant claimed that she was

subjected to discrimination based on race and sex when:

On May 25, 1999, complainant's supervisor purportedly said to her:

�[Complainant] do you want some?�which generated teasing from co-workers;

and,

On June 3, 1999, complainant's supervisor purportedly said to her: �the

closer to the bone, the sweeter the meat� and �the blacker the berry,

the sweeter the juice.�

The agency dismissed the complaint for failure to state a claim, finding

that conduct at issue was not sufficiently severe or pervasive to state

a claim of harassment due to a hostile work environment. Regarding claim

1, the agency determined that the supervisor quickly informed complainant

that the comment referred to overtime, and that complainant did not claim

that the subsequent co-worker teasing affected her working conditions.

Regarding claim 2, the agency determined that the comments did not

render complainant aggrieved, and that they did not create a hostile

working environment.

Complainant now appeals this determination. In response, the agency

elaborates upon its reasons for dismissing the complaint.

In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57 (1986), that harassment is actionable if it is sufficiently

severe or pervasive that it results in an alteration of the conditions

of the complainant's employment. See EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.

Furthermore, in assessing whether the complainant has set forth an

actionable claim of harassment, the conduct at issue must be viewed in

the context of the totality of the circumstances, considering, inter

alia, the nature and frequency of offensive encounters and the span of

time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);

Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1988);

Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1993);

EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,

No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request

No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in

Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998): �simple teasing,

offhand comments, and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the �terms and conditions

of employment.'�

The Commission determines that the instant complaint fails to state

a claim because the conduct at issue, even if proven to be true,

is not sufficiently severe or pervasive as to alter the conditions of

complainant's employment. Moreover, we find that complainant does

not otherwise challenge an unlawful employment policy or practice,

or demonstrate that she was rendered aggrieved. See 29 C.F.R. �

1614.107(a)(1); Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). Accordingly, the agency's final decision

dismissing complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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. � 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 (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. � 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 8, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.