01a62276
06-30-2006
Paula Smith-Jackson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Paula Smith-Jackson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A62276
Agency No. 2006-20064-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 31, 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.
On November 9, 2005 complainant initiated contact with an EEO Counselor,
and, subsequently filed a formal EEO complaint, alleging that she
was subjected to discrimination on the basis of sex (female), race
(African-American), and color (Brown) when: (1) on November 8, 2005, while
eating a banana, complainant was humiliated when a group of Caucasian
visitors laughed at a staff member's comment, "See, this is what I was
talking about;"1 (2) on January 13, 2006, an Operations Supervisor at the
agency requested that complainant complete a work-related form stating,
"[G]et the form back to me, don't monkey around with them;"2 and (3)
on January 10, 2006, the agency made a false statement in a letter to the
Office of Workers' Compensation Programs (OWCP) relative to complainant's
OWCP claim.
In a decision dated January 31, 2006, the agency explained that the
complainant failed to allege a personal loss or harm regarding a term,
condition, or privilege of her employment. Further, the agency explained
that a complaint concerning a workers' compensation claim before the OWCP
does not state a claim within the Commission's jurisdiction, except in
very limited circumstances. As such, the agency issued a final decision,
dismissing the complaint of discrimination for failure to state a claim.
The regulation set forth in 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. To the extent that complainant is alleging that claims
(1) through (3) constituted discrimination based on factors prohibited by
Title VII, the Commission notes that, 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).
The Commission has also held that where a complainant does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions
of the complainant's employment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993). Whether the harassment is sufficiently
severe to trigger a violation of EEO statutes must be determined by
looking at all of the circumstances, including the frequency of the
discriminatory conduct, its severity, whether it is physically threatening
or humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. See id.; Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994). Consistent with the Commission's policy to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05940481 (February
16, 1995).
Regarding incidents (1) and (2), we find that the complainant failed to
show that she suffered a harm or loss with respect to a term, condition
or privilege of employment for which there is a remedy or that the
allegations involved conduct that rose to the level of an actionable
claim of hostile work environment.
Regarding the third incident, the Commission has held that an EEO
complaint alleging discrimination in connection with a worker's
compensation claim before OWCP states a claim within the Commission's
jurisdiction only under limited circumstances. Schultz v. U.S. Postal
Service, EEOC Request No. 05950173 (September 26, 1996); Hogan
v. Department of the Army, EEOC Request No. 05940407 (September
29, 1994). In particular, a complainant may not use the EEO process
to launch a collateral attack on the workers' compensation process.
Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18,
1996). The Commission has recognized that the agency has the right
to represent its position and interest in the OWCP forum, and will not
review decisions which would require it to judge the merits of a workers'
compensation claim. Hogan, supra.
Where a complainant alleges that the agency discriminated in the
processing of a workers' compensation claim - for example, by failing
to submit required paperwork - then the complaint states an EEO claim.
Foster v. U.S. Postal Service, EEOC Appeal No. 01951370 (May 8,
1995), req. to recon. den., EEOC Request No. 05950693 (May 16, 1996).
However, where a complainant alleges that the agency discriminated in
a manner pertaining to the merits of the worker's compensation claim -
for example, by submitting paperwork contesting the claim - then the
complaint does not state an EEO claim. Id.; Schultz, supra. Regarding
incident (3), although complainant characterizes her allegation as one of
"discrimination," the gist of her allegation is that in the due course
of processing her worker's compensation claim, the agency made false
statements to OWCP going to the merits of that claim. Therefore, the
agency decision properly dismissed claim (3) on the ground of failure
to state a claim.
Accordingly, the agency's final decision dismissing the instant complaint
for failure to state a claim 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
June 30, 2006
__________________
Date
1 Complainant stated in her formal complaint, that she was later informed
by this staff member: "[T]he reason why everyone was laughing at you is
because I told them whatever they do when they go upstairs just don't feed
the monkeys. So when you stepped off the elevator eating that banana,
it was so funny!"
2 The second claim was made in an attachment to the formal complaint,
a letter dated January 23, 2006.
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01A61429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62276