01a04183
02-01-2001
Emma A. McCoy v. Department of the Defense 01A04183 February 1, 2001 . Emma A. McCoy, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Elementary & Secondary Schools), Agency.
Emma A. McCoy v. Department of the Defense
01A04183
February 1, 2001
.
Emma A. McCoy,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Elementary & Secondary Schools),
Agency.
Appeal No. 01A04183
Agency No. PE-FY00-09
DECISION
Upon review, the Commission finds that the agency's decision dated March
29, 2000, dismissing complainant's complaint for failure to state a
claim is proper pursuant to 29 C.F.R. � 1614.107(a)(1).<1> Complainant's
complaint involves a remark made by her coworker concerning her age on
one occasion. The Commission has consistently held that a remark or
comment unaccompanied by concrete action is not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9,
1995). Although complainant alleged in her complaint that the incident
created a hostile work environment, the Commission does not find that
the alleged action, an isolated incident, was sufficiently severe or
pervasive to alter the conditions of her employment such as to state a
claim of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is noted that the EEO Counselor's Report indicates
that the identified coworker thereafter apologized several times to
complainant when she learned how complainant was offended by her comments.
Upon review, the Commission finds that the complaint fails to state a
claim within the purview of the regulations.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 1, 2001
__________________
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.