01992407x
09-30-1999
Nancy S. Brown, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Nancy S. Brown, )
Appellant, )
) Appeal No. 01992407
v. ) Agency No. DOT 1-99-1006
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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. The appeal is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on October 23, 1998, alleging
discrimination on the basis of sex (female) when on June 17, 1998, she
was subjected to sexual harassment and a hostile work environment when
she observed a co-worker wearing a T-shirt with the word �Hooters�
written on it. Appellant further alleges that she requested that
supervisor-1 (co-worker's supervisor) send the co-worker home to change
his shirt. Supervisor-1 agreed to do so and appellant left for the day.
The following day, appellant called in sick because she was upset about
the incident and became further upset when she looked up information
on the �Hooters� restaurant chain. On June 22, 1998, supervisor-2
(appellant's supervisor) informed appellant that supervisor-1 did not
send the co-worker home nor did supervisor-1 even raise the issue of
the T-shirt with the co-worker.
In its FAD dated January 7, 1999, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a). The agency found that appellant
did not state a claim in which she suffered a present loss or harm with
respect to a term, condition, or privilege of employment for which there
is a remedy. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. 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; �1614.106(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. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In appellant's complaint, she asserts that the incident cited constitutes
harassment. In order to constitute a violation of Title VII, the
conduct must be �so objectively offensive as to alter the conditions of
the victim's employment.� See Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, EEOC Notice No.915.002
(June 18, 1999) (citing Oncale v. Sundowner Offshore Services, Inc.,
118 S. Ct. 998, 1002 (1998)). Upon review of the totality of appellant's
complaint, we find that the incident described therein is not sufficient
to rise to the level to state a claim of harassment. Therefore, we find
that the agency properly dismissed appellant's complaint for failure to
state a claim, pursuant to 29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 30, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations