01A22836_r
12-16-2002
Cindy Coldiron, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Cindy Coldiron v. Environmental Protection Agency
01A22836
December 16, 2002
.
Cindy Coldiron,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A22836
Agency No. 2001-0111-HQ
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 25, 2002, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and in reprisal for prior EEO activity when:
On August 30, 2001, complainant received a Performance Assistance
memorandum in which her supervisor advised her of her �substandard�
performance and subjected her to a hostile work environment by placing her
on a Performance Assistance Plan (PAP) and by otherwise being �virtually
unresponsive to any work related matters� concerning complainant.
The agency dismissed complainant's claim regarding the PAP pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. The agency stated that since the August 30, 2001
memorandum which initiated the PAP did not result in any material change
to the terms and conditions of complainant's employment, complainant
failed to state a claim with regard to this issue. With regard to
complainant's claim of reprisal, the agency stated that the PAP was
not reasonably likely to deter complainant or others from engaging in
protected activity. Alternatively, the agency dismissed the issue of the
PAP pursuant to 29 C.F.R. � 1614.107(a)(5), for involving a preliminary
step to taking a personnel action. The agency states that at most the
PAP was a preliminary step toward placing complainant on a Performance
Improvement Plan (PIP). With regard to complainant's claim of a hostile
work environment, the agency concluded that complainant failed to identify
facts which meet the severe or pervasive standard of a hostile work
environment claim and dismissed this issue for failure to state a claim.
On appeal, complainant argues that the notice of substandard performance
and placement on a PAP is part of her claim of harassment and therefore
should not be dismissed for failure to state a claim. Further,
complainant claims that the agency used the PAP to further harass her
by putting her on a PIP.<1>
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint that "alleges that a proposal to take
a personnel action, or other preliminary step to taking a personnel
action, is discriminatory." The Commission has stated, however, that a
complaint may not be dismissed under this section when the complainant
alleges, as in the present case, that the preliminary step was taken
for the purpose of harassing the individual for a prohibited reason.
In such a case, the agency's action has already affected the employee.
Rodriguez-Soto v. Army, EEOC Request No. 05960646 (October 8, 1998).
A claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). In determining whether a harassment complaint states a
claim, 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. Id.
Additionally, 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 Phillipps v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); see Cobb, supra.
Upon review, we find that the agency properly dismissed complainant's
complaint for failure to state a claim. In the present case, complainant
has only articulated two instances of alleged harassment, placement of
the PAP and her supervisor's unresponsiveness to work related matters.
While the record indicates that complainant was placed on a PIP, we
note this is the subject of another EEO complaint. We note that in the
present case, complainant does not allege that the PAP and accompanying
memorandum were placed in her personnel file. The Commission concludes
that complainant has not demonstrated that the alleged conduct that she
complains of is so severe or pervasive so as to constitute a hostile work
environment. Furthermore, complainant has not shown that she suffered
harm with respect to a term, condition, or privilege of employment.
Therefore, we find that the complaint fails to state a claim.
Accordingly, the agency's decision dismissing complainant's complaint
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
December 16, 2002
__________________
Date
1The record reveals that complainant filed
a subsequent EEO complaint concerning the PIP, under agency number
2002-0021-HQ.