01990262
01-14-2000
Rhonda F. Wright , Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Rhonda F. Wright v. Department of the Air Force
01990262
January 14, 2000
Rhonda F. Wright , )
Complainant, )
)
v. )
) Appeal No. 01990262
F. Whitten Peters, ) Agency No. 9V1M98415
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 13, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 2, 1998,
dismissing her complaint for failure to state a claim.<1> The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
Complainant filed an EEO complaint regarding claims of discrimination
based on race (African-American) and reprisal. The agency defined the
claim as follows: on August 5, 1998 complainant was almost assaulted by
her branch chief.
The agency dismissed the complaint for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a). The FAD indicated that complainant
had not suffered a personal harm as to a term, condition or privilege
of her employment.
On appeal, complainant contends that in her complaint she incorrectly
framed her claim as an "attempted assault" rather than an "assault".
Complainant specifically argues that when she filed the complaint,
she believed that she needed to have suffered bodily harm in order to
allege that she had been assaulted. Complainant further argues that
she subsequently learned that assault included the attempt or threat to
inflict injury.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
Based on a review of the record, the alleged incident occurred during
a meeting with complainant's Branch Chief. Complainant alleged that
the Branch Chief began speaking loudly and pointing his finger in a
co-worker's face; that complainant indicated that the Branch Chief need
not take such actions; that the Branch Chief then approached complainant
in a threatening manner; and that a co-worker interceded.
We note that on appeal, complainant contends that the alleged event is
an "assault", rather than an "attempted assault". Irrespective of the
manner in which complainant has identified the alleged incident, the
Commission determines that it fails to state a claim. Complainant has
failed to demonstrate that she suffered a harm or loss regarding a term,
condition, or privilege of her employment. Moreover, 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). Therefore, we find that the
agency properly dismissed complainant's complaint for failure to state
a claim, pursuant to 29 C.F.R. �1614.107(a)(1).
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Jan. 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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.