01a61029_r
04-18-2006
Hannah Klein, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Hannah Klein v. Department of Housing and Urban Development
01A61029
April 18, 2006
.
Hannah Klein,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A61029
Agency No. EEO 06 003
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated November 4, 2005, pertaining to her formal EEO
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. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614. 405.
Complainant contacted the EEO office regarding claims of harassment based
on her sex, race, religion and reprisal. Informal efforts to resolve
complainant's concerns were unsuccessful. Complainant filed a formal
complaint, dated October 12, 2005.
In the instant final decision, dated November 4, 2005, the agency
determined that the complaint was comprised of the following claim:
on August 2, 2005, and continuing, complainant's belongings have been
tampered with and attempts have been made to infest complainant's office
area and home with vermin. Specifically, complainant claims she found
a mouse in her vase and weevils in her desk and lunch bag.
The agency dismissed the complaint on the grounds of mootness. The agency
stated that management met with complainant to discuss the pest problems,
her office was treated by a pest control company, and she was provided
with a copy of the company's Observation Report. The agency found that
complainant was given the remedy she requested.
The agency also dismissed the complaint on the alternative grounds of
failure to state a claim. According to the agency, complainant's claim
that attempts were made to infest her office area and home with vermin
did not concern a term, condition or privilege of her employment.
On appeal, complainant reiterates the argument that she is subjected to
harassment by the deliberate placement of mouse dropping on her desk.
Complainant also addresses additional incidents of harassment, occurring
in July 2005, when her supervisor became the Director of Office of
Information Services and Communication. Complainant asserts, for example,
that she was given a �Counseling Memo� regarding an altercation with a
co-worker that occurred months earlier; a coworker that assaulted her
was not disciplined; she was deprived a private office; and she was
not invited to her supervisor's home with the rest of her co-workers.
In response, the agency argues that Title VII does not provide a remedy
for the infestation of rodents and weevils. Further, the agency
maintains that complainant has not shown that she suffered any harm
beyond the discomfort of finding rodent droppings in her work area.
The agency also notes that complainant has not alleged any facts that
would show that an individual intentionally infested her area, leading
to an inference of discrimination. Further, the agency argues that
the pest control company found that several offices had been infested,
not only complainant's area. The agency restates the reasoning set
forth in its decision, that it has already provided relief by having
complainant's office treated. Finally, the agency contends that the
additional incident raised for the first time on appeal are untimely
and not reasonably related to her infestation claim.
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).
Here, complainant contends that she was subjected to harassment by the
alleged intentional placement of mouse droppings and weevils in her
office area. The Commission agrees with the agency that complainant
has not established a claim regarding a personal harm or loss to a
term, condition or privilege of her employment. The complaint is not
sufficiently severe or pervasive to state a claim of discriminatory
harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). The instant complaint does not state a
claim upon which relief can be granted.<1>
Finally, we note that complainant raises additional incidents of
harassment on appeal, which allegedly occurred prior to the incidents
alleged in the instant complaint. They were not previously raised by
complainant, and it is inappropriate for her to raise them for the first
time on appeal.
Accordingly, the agency's decision to dismiss the complaint was proper
and 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
April 18, 2006
__________________
Date
1 Because of our disposition the Commission will not consider whether
the complaint was properly dismissed on alterative grounds.