0120065123
02-26-2009
Lisa M. Callaway, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Lisa M. Callaway,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120065123
Agency No. HS06ICE000596
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 1, 2006, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of race (Caucasian/non-Hispanic),
sex (female), and age (49) when, between February and October 2005,
she was subjected to a hostile work environment.
The agency dismissed the claim for failure to state a claim, finding
that the alleged incidents were insufficiently severe to create a hostile
work environment. For the following reasons, we AFFIRM the FAD.
The regulation set forth at 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).
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. 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. See Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County
School Dist. v. Breeden, 532 U.S. 268 (2001). A complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that
the complainant cannot prove a set of facts in support of the claim which
would entitle the complainant to relief. The trier of fact must consider
all of the alleged harassing incidents and remarks, and considering them
together in the light most favorable to the complainant, determine whether
they are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In her formal complaint, complainant used very general/vague language in
order to describe the alleged harassment. She stated that two Hispanic
coworkers always spoke in Spanish in her presence; made clear that they
did not want her on the team; excluded her from work-related information
even though she had no work experience in Immigration matters; and
ostracized her socially. She alleged that her team leader (female,
non-Hispanic/Caucasian, over age 40) incited hostilities between the
two Hispanic coworkers and complainant; expressed disdain for everything
"Customs," knowing that complainant was a legacy Customs employee; and
treated her in a hostile and prejudicial manner. She also indicated that
her immediate supervisor failed to respond to her May 25, 2005 list of
concerns and her request for reassignment from her work unit; and that in
late August or early September 2005, a new manager and her new supervisor
treated her unprofessionally, arrogantly, and in an intimidating manner.1
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because complainant failed to allege facts,
which if proven to be true, would establish that she was subjected to
unwelcome verbal or physical conduct involving her protected classes,
that the harassment complained of was based on her statutorily protected
classes, and that the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has she shown she
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
On appeal, complainant argues that due to the discriminatory actions
she incurred mental anguish and suffering. We note that the Commission
has long held that where an allegation fails to render an individual
aggrieved, the complaint is not converted into a cognizable claim merely
because complainant alleges physical and/or emotional injury. See
Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
February 26, 2009
__________________
Date
1 We note that, in her Brief in Support of Appeal, complainant provides
some more specific allegations of harassing incidents. For instance,
she asserts, without providing a date, that an Acting Supervisor told
her that two Hispanic co-workers ". . . have a chip on their shoulder
and it is racial - Hispanic vs. White. And, they want you out of here."
We note that we cannot consider this alleged incident or any other alleged
incident which complainant failed to raise prior to filing this appeal.
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0120065123
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013