Paula G. James, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity CommissionJun 11, 2009
0120091639 (E.E.O.C. Jun. 11, 2009)

0120091639

06-11-2009

Paula G. James, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.


Paula G. James,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Threat Reduction Agency),

Agency.

Appeal No. 0120091639

Agency No. DTRA09SCRS001

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 30, 2009, 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.

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

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. In a complaint dated January 21, 2009, complainant

alleged that she was subjected to discrimination on the basis of sex

(female) when on November 3, 2008, she received an email her supervisor

erroneously sent to her. Therein, her supervisor wrote:

"This is flipping comical. She still doesn't get it I don't send her

emails anymore because I'd have a hard time not giving her the "hello,"

is anybody there?"

Complainant also alleges that she voluntarily gave up her right to vote

on November 4, 2008.1

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).

Here, complainant alleges that the agency created a hostile work

environment when she received the harassing email referenced above.

The Commission finds that the complaint fails to state a claim under the

EEOC regulations because complainant failed to show that 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). In reaching this conclusion,

we find that complainant has failed to demonstrate that the agency's

conduct was so severe and pervasive that it altered the conditions of

her employment. Regarding complainant's allegation that she voluntarily

gave up her right to vote, the record indicates that complainant did

in fact vote on November 4, 2008. The record further indicates that

complainant was not required to use leave nor did she suffer any adverse

actions concerning voting on November 4, 2008. Based on a review of

the record before the Commission, we find that the agency's dismissal

of the instant complaint was proper.

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 (S0408)

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 (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

June 11, 2009

__________________

Date

1 In its final decision, the agency indicates that issues complainant

refers to in her formal complaint are currently before an EEOC

Administrative Judge. In complainant's appeal statement in the instant

matter, she refers only to the agency's conduct regarding the November

4, 2008 email and her right to vote. Consequently, this decision will

only address complainant's hostile work environment claim regarding the

events surrounding November 4, 2008.

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0120091639

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091639