0120064901
05-08-2007
Debra A. Ennis, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Debra A. Ennis,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200649011
Agency No. ARFTLEAV04AUG08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 6, 2006, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated May 22, 2006, complainant alleged
that she was subjected to discrimination on the basis of sex (female)
when she was exposed to a hostile work environment when:
1. On August 3, 2004, during an Intern Leadership Development Course
(ILDC), a male student made the comment that a female student looked like
a "girly girl" and another female student looked like a "dancer/party
girl" and when complainant approached the facilitators on break to request
assistance regarding the comments in class, she was rebuffed by one of
the facilitators (F1) and told it was not his problem;
2. On August 4, 2004, complainant learned that another of the facilitators
(F2) had notified the group at the beginning of the class that complainant
and a colleague would be delayed and asked the class to vote on whether
to wait for them;
3. On the same date, upon going to class unbathed and wearing the same
clothing and undergarments since approximately 6:30 the morning before,
complainant, along with a co-worker, were not offered a 15-20 minute
break to go to their room and put on clean clothing;
4. On the same date a chart was shown by F1 that contained the word
"exhibitionism" and a male student made the comment "Oh, is there going
to be nudity in here?" and F1 continued as if nothing was wrong; and
5. On August 5, 2004, during an ILDC assignment, a male student approached
one of the female students and stated that he chose her because she
was "hot" and then turned to a second female student and make the same
statement.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
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.
See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001). A complaint should
not be dismissed for failure to state a claim unless it appears beyond
doubt that the complainant cannot prove a set of facts in support of the
claim which would entitle the complainant to relief. The trier of fact
must consider all of the alleged harassing incidents and remarks, and
considering them together in the light most favorable to the complainant,
determine whether they are sufficient to state a claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Complainant contends she was subjected to discriminatory harassment
during a training session she attended from August 2 through 6, 2004. In
addition to the remarks made by classmates, complainant was upset by
the facilitators' failure to respond to the behavior. However, based
on the current record, the Commission agrees that the alleged events
were insufficiently severe or pervasive to state a claim of harassment.
On appeal, complainant argues that due to the discriminatory actions
she incurred mental anguish and suffering. We note that the Commission
has long held that where an allegation fails to render an individual
aggrieved, the complaint is not converted into a cognizable claim
merely because complainant alleges physical and/or emotional injury.
See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846
(March 11, 1994).
The agency's decision to dismiss the complaint for failure to state a
claim 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 8, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
??
??
??
??
2
0120064901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120064901