0120083811
06-04-2010
Sylvia D. Folks, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Sylvia D. Folks,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083811
Agency No. AREIWIES08JUN02315
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 21, 2008, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final decision dismissing complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
At the time of the events at issue, complainant was an Assignments
Specialist, GS-05, at the agency's Directorate of Human Resources,
U.S. Army Garrison (USAG) Wiesbaden, Germany. Formal Complaint,
at 1. In her formal complaint filed on July 5, 2008, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), national origin (American), sex (female), religion
(Baptist), and age (44) when:
1. On March 13, 2008, an employee (E1) from the USAG Wiesbaden's Civilian
Misconduct Action Authority (CMAA) refused to get her permission prior
to questioning her son in the hallway where she worked;1
2. The 501st Military Police (MP) Company and the Provost Marshall's
Office (PMO) withheld evidence from her that was critical for her
preparation for her son's expulsion hearing and the same withheld evidence
was not provided to the USAG Commander so that he could make a non-biased
decision on sending her son back to the United States;
3. E1 presented false, misleading, and incomplete information to the
USAG Wiesbaden Commander regarding her son's expulsion case; and
4. Members of the 501st MP and PMO withheld the police report, the names
of other witnesses that were at the scene, and critical information
regarding the alleged victim's gang-related background from his previous
school.
The agency dismissed complainant's complaint in accordance with 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. Agency's July 21,
2008 Decision, at 2. The agency found that complainant failed to show
how she suffered some personal loss or harm with respect to a term,
condition, or privilege of employment that constituted an unlawful
employment practice under EEO statues. Id.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The agency requests
that the Commission affirm its decision. Agency's Appeal Brief, at 5.
ANALYSIS AND FINDINGS
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,
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 (April 21, 1994).
In this matter, the record shows that complainant's complaint
relates entirely to the agency's handling of her son's expulsion case.
Complainant alleged in her June 2, 2008 informal complaint that "racial
discrimination against my son ... by the [agency] is in fact against me;
this affects my ability to perform my job for the Federal Government."
Although complainant contends that the agency's actions negatively
impacted her ability to work, we note that complainant's involvement
in her son's expulsion case was in her capacity as a parent, not as a
federal employee. As such, the Commission finds that complainant has
not shown that she has suffered a present harm or loss with respect to
a term, condition, or privilege of employment.
In addition, the Commission finds that, to the extent that complainant is
claiming a discriminatory hostile work environment, the events described,
even if proven to be true, would not establish that complainant has
been subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of her employment and rise to the level of
actionable harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim 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 4, 2010
Date
1 Complainant's son was allegedly involved in a January 31, 2008 assault
of another student at Wiesbaden High School, a Department of Defense
Dependent School. Agency's Appeal Brief, at 1-2. Due to this incident,
complainant's son was considered for a variety of disciplinary actions,
most of which were the responsibility of the USAG Wiesbaden's CMAA.
Id. at 2.
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0120083811
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013