Debra A. Ennis, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120064901 (E.E.O.C. May. 8, 2007)

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.

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0120064901

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120064901