01975627
10-30-1998
Sharon M Tambini-Simpkins, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Sharon M Tambini-Simpkins v. Department of the Navy
01975627
October 30, 1998
Sharon M Tambini-Simpkins, )
Appellant, )
)
v. ) Appeal No. 01975627
) Agency No. 97-00203-003
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 25, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision defined six allegations raised by the
appellant's complaint. The decision accepted five allegations for
investigation and dismissed one allegation for untimely EEO counselor
contact. Therein, the appellant alleged that on June 17 1996, she was
harassed by the Chief when she accused her of not being sick, she did
not want to grant her additional sick leave for a follow-up appointment,
and she indicated that the appellant had had a history of sick leave
abuse since 1993.
On appeal, the appellant contends that she contacted Counselor L on June
17, 1996. The appellant also represents that she subsequently withdrew her
informal complaint about the June 17, 1996 incident because a supervisory
counselor advised her to do so and because she told her she would help
her get a job elsewhere. The appellant indicates that she requested
reopening of the informal complaint after talking with someone in the
Office of Special Counsel.
In response, the agency submits a copy of a telephone log which indicates
that the appellant contacted Counselor L on August 26, 1996. The agency
also contends that even if the appellant's EEO counselor contact is
deemed timely, the allegation at issue fails to state a claim.
The Commission concludes that the appellant timely sought counseling
on June 17, 1996. The Commission bases this finding on the agency's
failure to submit a copy of Counselor L's telephone log for June 17, 1996.
The Commission also finds that it is possible that the agency induced
the appellant to withdraw her informal complaint in violation of EEOC
Regulation 29 C.F.R. �1614.105(g) in that the agency has not contested
the appellant's representations regarding the circumstances which led
her to withdraw her initial informal complaint.
However, the Commission agrees with the agency that the June 17,
1996 incident does not state an independent claim of employment
discrimination. The appellant did not allege that she was denied sick
leave on June 17, 1996. She also does not allege that she was disciplined
for abuse of sick leave on that occasion. The Commission finds that the
Chief's alleged remarks on June 17, 1996, although allegedly offensive,
were not sufficiently severe to constitute a change in the terms,
conditions, or privileges of the appellant's employment. See Miller
v. United States Postal Service, EEOC Request No. 05941016 (June 2,
1995) (an oral admonishment was not sufficient to state a hostile work
environment claim); Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996) (supervisor's remarks on several occasions,
unaccompanied by any concrete action, were not sufficient to state a
claim); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995) (allegation, that on one occasion a supervisor
questioned the complainant about his requested schedule revisions,
did not state a claim); and Larotonda v. United States Postal Service,
EEOC Appeal No. 01933846 (November 12, 1993) (allegation that supervisor
told the complainant that he was wearing a "filthy" shirt and uniform
did not state a claim). For this reason, the Commission affirms the
agency's dismissal of the appellant's June 17, 1996 allegation.
The Commission reminds the agency, however, that it is required to
investigate the June 17, 1996 incident to the extent that it provides
background evidence for the appellant's other allegations, especially
the appellant's incentive award allegation. The Commission further
reminds the agency that it is required to investigate the allegations
as stated in the appellant's complaint unless those allegations are
properly dismissed.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's June 17, 1996 complaint allegation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 30, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations