01a03014
07-06-2000
Nelsine J. Eades, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Nelsine J. Eades v. Department of Veterans Affairs
01A03014
July 6, 2000
Nelsine J. Eades, )
Complainant, )
)
v. ) Appeal No. 01A03014
) Agency No. 99-1581
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely<1> initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final agency decision concerning
her equal employment opportunity (EEO) complaint, which alleged
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 by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).<2>
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
In a complaint dated May 19, 1999, complainant filed a complaint alleging
discrimination based on race (Black) and sex (female); to wit, harassment,
sexual harassment, and adverse working conditions, in connection with
events which occurred on March 11, 1999. Complainant alleged that the
discriminatory conduct began in 1996, but in addition to the events of
March 11, 1999, cited only an incident which occurred on April 1, 1999.
With regard to March 11, 1999, complainant alleged that she was unable to
obtain information she needed to successfully complete an assignment, in
that she was excluded from e-mail, telephone, and personal communications
which would have afforded her this information, and that she believed
the intent of management was to cover up illegal or inappropriate
activity and to place the blame on her. On this date she also was
involved in a verbal altercation with a male manager, and opined that
this manager would not have approached her in the same manner had she
been male. With regard to April 1, 1999, complainant alleged that her
immediate supervisor harassed her about her leave usage, informed her
that other supervisors had made derogatory remarks about her, and that
the aforementioned manager was prepared to mark several elements of her
performance appraisal �unsatisfactory.� The record contains no indication
that any employment actions were taken against complainant following
these events. On January 31, 2000, the agency issued a FAD dismissing
the complaint. It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
With regard to the allegations of harassment and adverse working
conditions, the Commission finds that the agency properly dismissed the
complaint. Complainant has shown no personal loss or harm in connection
with the events identified in her complaint. See Riden v. Dept. of the
Treasury, EEOC Request No. 05970314 (October 2, 1998). Further, the
events alleged by complainant are not of the severity and/or frequency
that would support a claim of harassment. See Cobb v. Dept. of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). With regard to
the allegation of sexual harassment, the Commission also finds that the
agency properly dismissed the complaint. Complainant appears to have
misconstrued what is meant by �sexual harassment,� which is a different
matter than harassment based on sex. Sexual harassment requires, first
and foremost, that there be some conduct of a sexual nature. See, e.g.,
Brenda McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999). Complainant has not alleged any such conduct.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
1Complainant's appeal was mailed to the Commission. However, the
envelope in which the appeal was mailed does not appear in the record.
As a result the post-mark date, from which timeliness ordinarily would be
determined, cannot be referenced. Accordingly, the Commission exercises
its discretion to deem the appeal timely.
2On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.