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.