01A24055_r
05-29-2003
Cynthia E. Carter, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Cynthia E. Carter v. Department of Defense (Defense Finance & Accounting
Service)
01A24055
May 29, 2003
.
Cynthia E. Carter,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A24055
Agency No. DFAS-IN-HQ-02-032
DECISION
Complainant appeals to the Commission from the agency's decision dated
July 2, 2002, dismissing her complaint of discrimination for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint
dated July 1, 2002, complainant alleged that she was subjected to
harassment on the bases of race (African-American) and reprisal for
prior EEO activity when:
On April 4, 2002, complainant and her supervisor had a confrontation,
during which the supervisor told her to leave his office in a nasty tone
of voice.
On May 23, 2002, the supervisor told complainant not to interrupt a
conversation that he was having in his office with another employee.
Agencies must dismiss complaints that fail to state a claim. 29 C.F.R. �
1614.107(a)(1). A complaint states a claim if complainant is an
aggrieved employee and has alleged employment discrimination covered
by the EEO statutes. Complainant is aggrieved if she suffered a
direct or personal harm or loss with respect to a term, condition,
or privilege of employment, for which there is a remedy. In this
case, the alleged discriminatory harassment consists of two incidents,
over a month and a half apart, that involved verbal exchanges between
complainant and her supervisor. Complainant has not shown that she
was disciplined or otherwise deprived of a term, condition, benefit,
or privilege of employment as a result of those incidents. Remarks or
comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. Laity v. Department of Veterans Affairs,
EEOC Request No. 05990104 (August 16, 2001). Accordingly, the agency's
final 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
May 29, 2003
__________________
Date