01A24870_r
09-17-2003
Connie M. Thigpen, Complainant, v. Marianne Lamont Horinko, Acting Administrator, Environmental Protection Agency, Agency.
Connie M. Thigpen v. Environmental Protection Agency
01A24870
September 17, 2003
.
Connie M. Thigpen,
Complainant,
v.
Marianne Lamont Horinko,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A24870
Agency No. 2002-0065-R7
DECISION
Complainant appeals to the Commission from the agency's August 2, 2002
decision dismissing her complaint. Complainant alleges discrimination on
the basis of sex when on February 7, 2002, she was harassed by another
EPA employee, who she pepper sprayed on July 31, 2001, when he visited
her work area despite the fact that he had been ordered to stay away
from her. The agency dismissed complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(1), for stating the same claim that has already been
decided by the agency. Specifically, the agency found that complainant's
instant complaint raises the same claim as that claim raised in agency
No. 2002-0052-R7.
Complainant, in her complaint, alleges that the co-worker "on February 7,
2002, at approximately 4:55 pm, close of business while management and
most staff had gone home for the day, appeared and was seen in [her]
work area, of which he and [complainant] were told to cease and desist
by management by both memo and oral conversation." Complainant has not
challenged the framing of the complaint. There is no indication that
the co-worker had any contact with complainant herself or was anywhere
near complainant's person. There is no evidence that the mere alleged
presence of the co-worker on February 7, 2002, in complainant's work
area, resulted in harm to complainant. Complainant has not shown harm
to a term, condition or privilege of employment and, therefore, fails
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Since the
complaint is properly dismissed for failure to state a claim, we will
not make a determination on the agency grounds for dismissal.
The agency's decision dismissing complainant's complaint is AFFIRMED
for reasons set forth herein.
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
September 17, 2003
__________________
Date