01a53471
08-11-2005
Carmen Balkovec, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Carmen Balkovec v. Department of Homeland Security
01A53471
08-11-05
.
Carmen Balkovec,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 01A53471
Agency No. 050290
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated March 18, 2005, 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. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Hispanic), national origin (Hispanic), sex, disability,
age (DOB 03/10/52), and reprisal for prior EEO activity when:
she was harassed by a coworker from March 1998 until April 8, 2004; and
she was denied a CA-1 and a CA-16 form by her supervisor on April 9, 2004.
The agency dismissed both of complainant's claims. The agency found
that claim one failed to state a claim because the alleged April 8, 2004
incident was an isolated incident that was not sufficiently severe for
a reasonable person to conclude that the workplace was threatening or
humiliating towards a particular group. The agency also found that the
April 8, 2004 incident was not likely to reasonably deter an individual
from asserting his or her rights in the EEO process.
In regard to complainant's second claim, the agency found that it was
not actionable because the matter is not in dispute. Since complainant
received the CA-1 form, an alternative for the requested CA-16 form,
the issue is no longer in dispute. The agency also states that the
claim is a collateral attack since the claim is an alternative method for
complainant to obtain benefits otherwise provided through the Office of
Workers' Compensation Programs (OWCP). Therefore, the agency found that
the claim is outside of the scope of EEO regulations. The agency also
states that if complainant is alleging that her supervisor unduly delayed
in providing her the CA-1 and CA-16 forms, and, thereby, discriminated
against her, she again fails to state a claim. A delay in providing
a form is not an actionable claim when there is no indication that the
delay affected the processing of the form.
On appeal complainant does not raise any new contentions, and the agency
asks for the Commission to affirm its FAD.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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, disabling condition, or in reprisal.
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).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. Nat'l Aeronautics and Space Admin., EEOC Request No. 05970388
(February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Servs., EEOC Request No. 05940481 (February
16, 1995).
Complainant asserts that from March 1998 until April 8, 2004 she was
harassed by a coworker (CO1). On April 8, 2004 complainant was in
the lunchroom with CO1 and other coworkers when CO1 told complainant
that her head is empty, and as a result the others laughed. Report of
Investigation; CO1 Affidavit. However, complainant only cites the April
8, 2004 incident, and is unable to recall any other specific instances
of harassment by CO1. Complainant Affidavit. Complainant asserts
that she never reported the harassment to management because she was
afraid of retaliation. Complainant Affidavit. Complainant did not keep
any records of the alleged harassment either. Complainant Affidavit.
Another co-worker (CO2), who was present in the lunchroom on April 8,
stated that everyone knew that CO1 was joking but that complainant
misinterpreted the comment. CO2 Affidavit. Moreover, CO1 stated that
he is constantly making comments about other people, and that he treats
everyone in the same manner. CO1 Affidavit; Report of Investigation.
Complainant has not shown that she has suffered a harm or loss in respect
to a term, condition, or privilege of employment. As such, complainant
is not an aggrieved employee. Furthermore, a single isolated incident
does not constitute a hostile or abusive work environment necessary
for a harassment claim. Since complainant has failed to state a claim,
the agency's dismissal of complainant's first claim is affirmed.
With regard to complainant's second claim concerning her denial of the
OWCP forms, the Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Serv., EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993). Complainant alleges that
on April 9, 2004 she requested a CA-1 and/or a CA-16 form from her
supervisor (SO1). Complainant Affidavit. Despite complainant and
her union representative's repeated requests, SO1 denied the forms.
Complainant Affidavit. We find that since complainant was denied access
to the OWCP process, the appropriate forum for complainant's claim is the
Department of Labor and not the EEOC. Therefore, we find that complainant
failed to state a claim, and the agency's final decision is 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
______08-11-05____________
Date