01A14674_r
12-16-2002
Dominica A. Hall, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dominica A. Hall v. Department of the Air Force
01A14674
December 16, 2002
.
Dominica A. Hall,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14674
Agency No. AL900010915
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint for failure to state
a claim. In her formal complaint, complainant alleged that she was
subjected to discrimination on the basis of sex (female) when on August
24, 2000, she received a document entitled �Hostile Work Environment,�
written by the Deputy Director of Contract appeals on March 31, 1999 and
supplemented April 10, 1999, that included comments complainant considers
to be character assassination, hatred, hostility, and sexual mistreatment.
The Deputy Director wrote the document in question as part of an Office of
Inspector General (OIG) complaint filed against him. Therein, he stated,
�I believe those least likely to be truthful are: [Complainant].� It
also includes his denial of taking part in any effort to deny complainant
a promotion, or an upgrade through a desk audit.
On appeal, complainant contends that her claim includes a pattern of
harassment including the supervisor lewdly staring at her in 1995,
refusing to promote her in 1997, and refusing to support complainant's
requests for desk audits. Complainant claims to have raised this
pattern of harassment issue with her EEO Counselor. In response, the
agency notes that complainant never raised the pattern of harassment
issue in her formal complaint. The agency also notes that complainant
never challenged the agency's definition of her claim, despite being given
opportunities upon receiving its November 17, 2000 notice of receipt of
complainant's formal complaint, November 30, 2000 notice of acceptance
of her complaint, or April 10, 2001 memorandum from the investigator
identifying the scope of his investigation.
As an initial matter, the Commission finds that complainant's claim
involves the single incident identified in complainant's formal
complaint. The discussions complainant had with her EEO Counselor,
prior to identifying her claims in her own formal complaint, do not
alter her complaint. These incidents occurred several years prior to the
incident complainant identified in her formal complaint. Further, the
Commission notes that complainant never attempted to have the agency's
definition of her claims, nor the scope of its investigation expanded
prior to the present appeal.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Hostile work environment harassment is actionable if it
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Complainant never suffered any tangible harm to a term, condition, or
privilege of her employment because of the Deputy Director's comments,
and the incident is not severe or pervasive enough to state a claim.
Further, statements made in the course of an OIG investigation do not
form the basis of an actionable claim. Cf Johnson v. Department of
the Navy, EEOC Request No. 05960699 (April 16, 1998) (being subject to
an OIG investigation does not state a claim); Mattocks v. Department
of the Navy, EEOC Request No. 05950549 (August 29, 1996); Halstead
v. United States Postal Service, EEOC Appeal No. 01A21503 (November 7,
2002) (supervisor's statement in prior investigation that claimant
made �complete fabrication� is not grounds for an actionable claim).
Accordingly, the agency's dismissal 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
December 16, 2002
__________________
Date