01a55009
11-08-2005
Bonita D. Sharpe, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Bonita D. Sharpe v. Department of Commerce
01A55009
November 8, 2005
.
Bonita D. Sharpe,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A55009
Agency No. 05-54-00118
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim.
On February 15, 2005, complainant contacted an EEO Counselor and claimed
that she was subjected to discrimination on the bases of sex, religion,
and in reprisal for prior EEO activity when on December 13, 2004, a
co-worker gave her, as a Christmas gift, a book entitled �Sportin' a
�Tude,� which complainant noted was replete with religious undertones.
Complainant determined further that the gift was given to her due to
a prior confrontation with the co-worker, when the co-worker felt that
complainant had an �attitude problem� when complainant disagreed with her.
Informal efforts to resolve the matter was unsuccessful.
On April 27, 2005, Complainant filed the instant formal complaint.
Complainant's complaint was comprised of the matter for which complainant
underwent EEO counseling, discussed above.
In a final decision dated June 21, 2005, the agency dismissed the
complaint for failure to state a claim. The agency also dismissed the
complaint on the alternative grounds of untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. In order to establish standing initially under 29
C.F.R. �1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the claims of discrimination
are raised. In addition, the claims must concern an employment policy
or practice which affects the individual in his or her capacity as an
employee or applicant for employment. 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; �1614.106(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).
The Commission determines that complainant's complaint, regarding receipt
of a book as a Christmas gift from a co-worker with whom she had a prior
confrontation, does not address a personal loss or hard regarding a term,
condition, or privilege of her employment. Moreover, a review of the
record reflects that the matter in question is insufficient to support
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
The agency's final decision dismissing complainant's complaint for
failure to state a claim is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
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
November 8, 2005
__________________
Date