01a34746_r
06-24-2004
Kerry L. Munoz, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Kerry L. Munoz v. Department of the Navy
01A34746
June 24, 2004
.
Kerry L. Munoz,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34746
Agency No. DON 03-68335-004
DECISION
Initially, it is noted that although the agency dismissed complainant's
complaint due to untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2), the Commission finds that the complaint is more
properly dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). Thus, this decision will discuss the matter accordingly.
The agency defined the complaint as alleging that complainant, a Police
Officer, was discriminated against when on December 23, 2002, she was
harassed by a managerial official.<1> Complainant has not challenged
the agency's framing of the complaint. Complainant indicated in
the complaint that on December 23, 2002, the official accused her of
incorrectly conducting the motor vehicle stop and made unprofessional
remarks to her about her leaving the patrol car running during her
visit to the ladies room and her visit to the on-duty dispatcher in the
building. 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).
There is no evidence in the record that complainant was subjected to
any disciplinary action as a result of the alleged accusation/remark.
Thus, the Commission finds that the complaint fails to state a claim
within the purview of the regulations. Although complainant claimed
that the alleged incidents constituted harassment, the Commission does
not find that the alleged actions were 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). Accordingly, the agency's decision 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 24, 2004
__________________
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
______________________________
1It is noted that in her complaint, complainant also raised other
matters concerning her transfer, leave, days off, promotion, and working
conditions as background information.