01A33931
06-08-2004
Dawn, M Anderson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Dawn, M Anderson v. Department of Justice
01A33931
06-08-04
.
Dawn, M Anderson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A33931
Agency No. M030028
DECISION
Complainant, an employee at the United States Marshals Service (�Agency�)
alleged a violation of her rights under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. resulting from a racially
discriminatory comment directed at her by an agent from the Office of
the Inspector General (OIG). The Agency dismissed the complaint of
racial discrimination for failure to state a claim, pursuant to 29 C.F.R
� 1614.107(a)(1).
Complainant was subjected to the OIG agent's alleged discriminatory
remark during the course of an investigation regarding another matter of
racial discrimination that had occurred at the Agency.<1> The Agency
found that the OIG agent's inappropriate comment was an isolated
remark and did not result in a direct deprivation that would render
Complainant aggrieved. See Henry v United States Postal Service, EEOC
Request No. 05940695 (February 9, 1995); Simon v United States Postal
Service, EEOC Request No. 05900866 (October 3, 1990). Additionally,
the Agency found that because the OIG did not have power over the terms
or conditions of Complainant's employment, her Title VII claim did not
involve an adverse employment action.
Complainant's grievance against the OIG agent is one that must be handled
internally within the OIG. See Tucker v United States Postal Service,
EEOC Appeal No. 01A1592 (January 18, 2002). Complainant did not suffer an
employment-related injury resulting from the discriminatory statement,
which leaves her claim outside the purview of the Commission. 42 U.S.C.
� 2000e. The complaint is therefore dismissed for failure to state a
claim pursuant to 29 C.F.R � 1614.107(a)(1).
The Agency's decision dismissing the 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
___06-08-04_______________
Date
1Complainant had received harassing letters
with racial overtones at work, and the OIG was charged with investigating
this issue. There is nothing on the record indicating that Complainant
filed an EEO claim regarding the letters, and that recourse is likely now
foreclosed because of timeliness requirements. If, however, Complainant
receives another letter, she may file an EEO complaint against the Agency.