0120082272
09-19-2008
Bonnie M. Femling, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Bonnie M. Femling,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120082272
Agency No. BOR-2007-0261
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 18, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the
Commission finds that complainant's complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
On May 8, 2007, complainant initiated EEO contact alleging that the agency
subjected her to hostile work environment harassment based on sex (female)
and age (over 40). To support her harassment claim, complainant alleged
that (1) on April 23, 2007, someone anonymously left a magazine article
about "hoarding" on her desk, (2) on April 23, 2007, a male coworker
(C1) told her that she should retire and that she is stupid, (3) on
April 24, 2007, another male coworker returned drawings un-reviewed to
her that she submitted to him for peer review, (4) on unspecified dates,
C1 made negative comments about women generally, (5) between February
and May 2007, due to C1's negative attitude, team members refused to
rotate serving as acting supervisor, (6) between February and May 2007,
C1 and another coworker held keys to their former supervisor's office
and supervisory rights to his work database, (7) since April 1997,
complainant's work group has indicated numbers in the wrong area on
drawings, (8) in October 1996, complainant and another coworker did
not feel welcome in their new office following placement there due to
a reduction-in-force, and (9) C1 is the only person who held a GS-7 in
the office. On August 15, 2007, complainant filed a formal EEO complaint
reiterating her claim of harassment, adding the bases of disability
(Anxiety Disorder) and reprisal for prior EEO activity, and noting that
her former supervisor admonished her regarding religious issues, such
as blood donation.
In its March 18, 2008 final decision, the agency dismissed complainant's
claim for failure to state a claim. Specifically, the agency found
that complainant did not allege actions that affect a term, condition or
privilege of employment for which there is a remedy or that were severe
or pervasive enough to rise to the level of a hostile work environment.
The agency concluded that complainant failed to show that she was
aggrieved. Further, regarding the claim of supervisory admonishment
regarding religious issues, the agency dismissed that matter for failing
to bring it to the attention of an EEO Counselor. The instant appeal
from complainant followed.
After a careful review of the record, we determine that the actions
alleged, both individually and together, fail to rise to the level of
a hostile work environment. Further, we find that the agency actions
alleged were not of a type reasonably likely to deter complainants or
others from engaging in protected activity. Accordingly, we AFFIRM
the agency's final decision dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 19, 2008
__________________
Date
2
0120082272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3 0120082272