Deborah E. Urban, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 11, 2003
01A24493_r (E.E.O.C. Jun. 11, 2003)

01A24493_r

06-11-2003

Deborah E. Urban, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Deborah E. Urban v. Department of Veterans Affairs

01A24493

June 11, 2003

.

Deborah E. Urban,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A24493

Agency No. 200W-0541-2002102740

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds

of failure to state a claim. On May 23, 2002, complainant filed a formal

EEO complaint wherein she claimed that she was discriminated against

on the basis of her sex (female) when she was subjected to a hostile

work environment. The specific acts cited by complainant are that (1)

on or around February 20, 2002, she had a verbal confrontation with a

coworker and the coworker commented to her in the presence of bargaining

unit employees �I am tired of you fucking with people when I am off�;

and (2) other employees started and spread a rumor about her having oral

sex with three employees. Complainant claimed that management took no

action to stop the rumor.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court found that harassment is actionable, even absent a claim that

an agency's action harmed complainant in a specific term, condition,

or privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating a

hostile work environment, and also that the conduct is sufficiently severe

or pervasive as to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

Based on a review of the record, we find that the agency properly

dismissed the instant complaint. We find that complainant has not

established how she was harmed with regard to a term, condition, or

privilege of her employment by the alleged profanity directed at her

or the alleged rumor about her having oral sex with three employees.

See James v. Department of Health and Human Services, EEOC Request

No. 05940327 (September 20, 1994)(complaint concerning a rumor that

complainant was caught having sex with a female coworker and verbally

harassed and abused by sexual references made in the workplace about

him and the coworker failed to state a claim). Moreover, complainant

has failed to allege actions that are sufficiently severe or pervasive

to constitute a hostile work environment. Accordingly, the agency's

decision dismissing the complaint on the grounds of failure to state a

claim is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 11, 2003

__________________

Date