Philicia L. Jones, Complainant,v.Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJan 6, 2012
0120112479 (E.E.O.C. Jan. 6, 2012)

0120112479

01-06-2012

Philicia L. Jones, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.




Philicia L. Jones,

Complainant,

v.

Leon E. Panetta,

Secretary,

Department of Defense

(Defense Logistics Agency),

Agency.

Appeal No. 0120112479

Agency No. DLAN110031

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated February 28, 2011, dismissing her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Supply Technician at the Agency’s DLA Distribution facility in

Stockton, California.

On January 27, 2011, Complainant filed a formal complaint alleging that

the Agency subjected her to discrimination on the basis of sex (female)

when, on November 19, 2010, her second-level supervisor watched her

as she walked through the office and glared at her through a mirror

in her cubicle. The Agency dismissed the complaint, pursuant to 29

C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant

appeal followed.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency

shall accept a complaint from an 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. Dep’t of the Air Force, EEOC Request No. 05931049 (April

21, 1994). If complainant cannot establish that s/he is aggrieved,

the agency shall dismiss a complaint for failure to state a claim.

29 C.F.R. § 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not

challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, the claim of harassment may

survive if it alleges conduct that is sufficiently severe or pervasive

to alter the conditions of the complainant’s employment. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission finds

that Complainant’s allegation, even if considered true, is insufficient

to state a claim of a hostile work environment.

For the first time on appeal, Complainant raises a number of other

alleged incidents involving the same second-level supervisor that she

says occurred between November 2010 and March 2011. While some of these

alleged incidents were a part of an earlier complaint which was resolved,

in the instant formal complaint she only raised the November 19, 2010

incident described herein. Moreover, even if the incidents described

in her appeal were to be considered, Complainant still has not alleged a

viable claim of hostile work environment as her allegations involve the

supervisor walking past her desk or entering the building at the same

time she did. It is not at all clear how these actions, even if true,

rendered Complainant aggrieved.

Accordingly, the Agency’s decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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

77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

January 6, 2012

__________________

Date

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0120112479

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120112479