Ching S. Shelton, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A31329_r (E.E.O.C. Oct. 14, 2003)

01A31329_r

10-14-2003

Ching S. Shelton, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Ching S. Shelton v. Department of the Air Force

01A31329

October 14, 2003

.

Ching S. Shelton,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A31329

Agency No. AL900030315

DECISION

Complainant initiated contact with the agency's EEO Office on July

1, 2002. In an EEO complaint dated October 10, 2002, complainant

claimed that she was discriminated against on the basis of her race

(Asian-American) when:

1. On February 14, 2002, complainant was embarrassed and humiliated

when the Colonel did not accept her attempt to create a positive working

relationship between them. Specifically, the Colonel did not accept her

gift of flowers. The Colonel also did not follow through on a proposal

to meet with her to attempt to work out their differences.

2. During a meeting with the Lieutenant Colonel on April 22, 2002, the

Lieutenant Colonel called complainant a glorified secretary and stated

that her position description should be revised so as to eliminate her

responsibilities with the Asian Pacific Islander Program.

3. A memorandum dated June 10, 2002, contained an organizational chart

that showed that the Lieutenant Colonel and another Colonel (hereinafter

referred to as Colonel II), a married couple, were in the same chain

of command. Complainant stated that these officials were abusive

towards her.

4. On July 1, 2002, during a staff meeting, Colonel II gasped after

complainant completed her presentation. Complainant stated that the

Lieutenant Colonel ignored the matter and defended her husband.

By decision dated December 19, 2002, the agency dismissed claims 1-2 of

the complaint on the grounds that complainant failed to initiate contact

with an EEO Counselor in a timely manner and the entire complaint was

dismissed on the grounds of failure to state a claim. With regard to its

dismissal of the entire complaint on the grounds of failure to state a

claim, the agency determined that complainant failed to identify a harm

to a term condition, or privilege of her employment.<1>

On appeal, complainant states with regard to claim (1) that this is

a claim against the Colonel for his condescending attitude, perpetual

arrogance, and inconsistent management style. According to complainant,

the Colonel complimented her most of the time, but his actions reflected

the opposite. Complainant contends that the Colonel's weak leadership

encouraged the Lieutenant Colonel and Colonel II to discriminate against

her. With respect to claim (2), complainant states that this is a claim

against the Lieutenant Colonel for calling her a glorified secretary.

As for claim (3), complainant states that this claim is intended to

demonstrate poor management and that management ignores the appearance of

impropriety by allowing a married couple to be in the chain of command.

With regard to claim (4), complainant states that this claim reflects

her hostile work environment. Complainant argues that the Lieutenant

Colonel ignored the issue of her husband gasping during a meeting after

she completed a presentation. Complainant maintains that the agency

has improperly evaluated her complaint as separate incidents rather

than a pattern of harassment that created a hostile work environment.

Complainant states that she has been subjected to harassment due to her

national origin and involvement in the Asian Pacific Islander Program.

With regard to its dismissal on the grounds of failure to state a

claim, the agency asserts that even if all of the claims are viewed

collectively and accepted as true, they are not sufficiently severe or

pervasive to constitute harassment. The agency states that the only

pattern evidence in the claims is that there was an ongoing disagreement

between complainant and certain officers in her organization concerning

how much emphasis complainant should place on the Asian Pacific Islander

Program in the context of her overall duties. The agency maintains that

complainant's claims do not reflect harassment, but rather that the

Colonel did not have the same level of interest in the Asian Pacific

Islander Program as complainant. With regard to the two claims that

were dismissed solely on the grounds of failure to state a claim, the

agency asserts as to claim (3) that complainant has not explained how

the marriage between two active duty officers in her organization has

negatively impacted her conditions of employment. With respect to claim

(4), the agency asserts that Colonel II's questioning of complainant

during a staff meeting and a gasp he made subsequent to her comments

at another staff meeting do not rise to the level of harassment whether

viewed alone or as the final link in an alleged chain of harassment.

The Commission finds that the alleged incidents are not sufficiently

severe or pervasive to state a claim of harassment. We further find

that none of the incidents set forth in the complaint caused complainant

to suffer harm to a term, condition, or privilege of her employment.

Therefore, the complaint was properly dismissed for failure to state a

claim pursuant to 29 C.F.R. �1614.107(a)(1).<2>

Accordingly, the agency's decision dismissing complainant's complaint

was proper and 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

October 14, 2003

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The agency dismissed four additional claims on the grounds of untimely

EEO contact and failure to state a claim. However, complainant states

on appeal that these matters should not be considered claims in the

instant complaint.

2In light of our affirmance of the agency's decision dismissing the

complaint for failure to state a claim, we need not address the agency's

alternative grounds for dismissal.