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