01A04016
09-28-2000
Sue Hillard, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Sue Hillard v. Department of Justice
01A04016
September 28, 2000
.
Sue Hillard,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A04016
Agency No. F-99-5385
DECISION
On May 17, 2000, complainant filed an appeal with this Commission from
an agency's decision pertaining to 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding claims of sexual harassment
in reprisal for her prior EEO activity. Informal efforts to resolve
complainant's concerns were successful. On August 13, 1999, complainant
filed a formal complaint. The agency framed the claim as follows:
On May 18, 1999, complainant learned that a Special Agent of the New
York Division criticized her regarding her photograph and comments she
made in a New York Times magazine article.
On April 11, 2000, the agency issued a decision dismissing the complaint
for failure to state a claim. According to the agency, complainant failed
to show that she was subjected to an adverse agency action as a result
of the alleged comment. Moreover, the agency found that the alleged
incident was insufficient to state a claim of hostile work environment,
with respect to complainant's claim of sexual harassment.
On appeal, complainant's attorney argues that the complaint was
improperly dismissed because she was sexually harassed and slandered
by management; and that the agency should be liable for the actions
of supervisors.
In response, the agency reiterates its determination that the complaint
fails to state a claim. The agency asserts that complainant has not
established that she was subject to adverse employment action; and that
the comment was not severe enough to create a hostile work environment.
With respect to complainant's liability argument, the agency notes that
the alleged remark was made by a co-worker and not a supervisor; and
that liability is not an issue because complainant failed to establish
a hostile work environment.
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).
Complainant asserts she was sexually harassed when a co-worker made
allegedly false comments about her participation in a magazine article.
According to complainant, the Special Agent's remarks included assertions
that complainant had posed in an inappropriate manner and that the
photographs were provocative and obscene. The Commission finds, however,
that the alleged comments are not sufficient to render complainant an
aggrieved employee. The Commission has repeatedly found that remarks or
comments unaccompanied by a concrete agency action are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995). Complainant
admits, on appeal, that the agency �took no adverse personnel action
against [her] as a result of the slanderous reports....� Although
she argues that the remarks put her in a �bad light,� we determine
that complainant has not alleged a harm or loss to a term, condition,
or privilege of her employment. In addition, we do not find that the
alleged events are sufficiently severe or pervasive to state a claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Accordingly, the agency's decision dismissing the complaint for failure
to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.