01981772
05-01-2000
Rebecca A. Nelson, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Rebecca A. Nelson v. Department of Transportation
01981772
May 1, 2000
Rebecca A. Nelson, )
Appellant, )
)
v. ) Appeal No. 01981772
) Agency No. 4-98-016
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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 final agency decision was dated November
20, 1997. The appeal was postmarked December 22, 1997.<1> Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960.001, as amended.
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that she failed to state a claim under 29
C.F.R. �1614.103(a).
Appellant filed a formal complaint on November 1, 1997, alleging that
she had been discriminated against on the bases of her race (Black)
and sex (female) when on September 10, 1997, she received a sexually
and racially offensive leaflet in her employee mailbox.<2>
After appellant reported the incident on September 10, 1997, a memorandum,
dated September 10, 1997, was issued to all employees. The memorandum
indicated that such behavior was "unacceptable and [would] not be
tolerated."<3> According to the agency, its investigation revealed
that six other employees, all white males, also received copies of the
offensive leaflet in their mailboxes. The identity of the person who
placed the leaflet in the mailboxes was never discovered.<4>
In its final decision dated November 20, 1997, the agency dismissed
appellant's complaint on the grounds that she failed to state a claim.
The agency informed appellant that the incident, albeit reprehensible,
did not create an offensive or hostile working environment for the
purposes of Title VII. This appeal followed.<5>
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
An agency, however, must 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994).
In Cobb v. Dept. of the Treasury, EEOC Request No. 05970077 (March 13,
1997), the Commission outlined what was required in order to state a claim
in a harassment case. In conjunction with its discussion of existing
precedent in this area, the Commission advised that (1) the ultimate
merit of the allegations (whether they are true/whether discrimination
has occurred) may not be considered; and (2) the complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that
the complainant can prove no set of facts in support of the claim which
would entitle him to relief. The Commission further held that claims
of harassment should be accepted where the complainant has made factual
allegations which, when considered together and treated as true, are
sufficient to state a claim either of (1) disparate treatment regarding
hiring, termination, compensation or any other specific term, condition,
or privilege of employment; or (2) a hostile or abusive work environment.
Cobb, at p. 7. The Commission held that "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....[t]he trier of fact should
consider whether a reasonable person in the complainant's circumstances
would have found the alleged behavior to be hostile or abusive." Cobb,
at pp. 6-7.
In the instant case, we find that the incident about which appellant
complains, while offensive, is too isolated and insufficiently severe
to be regarded as creating a discriminatory work environment. We note
in this regard that this matter involves a single event that occurred
on September 10, 1997. We also note the lack of persuasive evidence
that appellant was "singled out" because of her race or sex when she and
six white, male employees received the leaflet. It is well-settled that,
unless the conduct is very severe, a single incident or a group of
isolated incidents will not be regarded as creating a discriminatory work
environment. See James v. Department of Health and Human Services, EEOC
Request No. 05940327 (September 20, 1994); Walker v. Ford Motor Company,
684 F.2d 1355 (11th Cir. 1982). Consequently, the agency properly
dismissed appellant's complaint for failure to state a claim. Accordingly,
after a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, we find that the
decision of the agency was proper and it 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:
May 1, 2000
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1The agency failed to provide evidence that establishes the date when
appellant received the agency's final decision. Consequently, we will
presume that the appeal was filed in a timely manner.
2A copy of the leaflet is contained in the record.
3According to the record, a second memorandum was also issued on September
26, 1997. This memorandum, however, concerned a second incident involving
another female employee. Apparently, a derogatory message was left on
her desk. Appellant, who had been out on leave since the first incident,
was not involved.
4After the incident, appellant was placed on administrative leave.
Thereafter, she applied for and has been receiving worker's compensation
since the time of the incident.
5In her appeal brief, appellant erroneously maintained that the EEOC
was involved in the decision to dismiss her complaint.