01A45521_r
11-29-2004
Dorothy M. Nieves, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Dorothy M. Nieves v. Department of Defense (Defense Commissary Agency)
01A45521
November 29, 2004
.
Dorothy M. Nieves,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A45521
Agency No. DECWP20040018
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 16, 2004, 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. the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The agency
defined complainant's complaint as alleging that she was subjected to
discrimination on the bases of race (African-American), color (black),
sex (female), age (57) and disability (asthma) when:
On February 24, 2004, Person A told her that Vacancy Announcement #120488
was closed;
On February 24, 2004, complainant was allegedly accused by an unnamed
person to have spoken to Person B in the presence of a Commissary patron;
Between September 24, 2003, and February 10, 2004, Person C allegedly
directed complainant to deviate from normal procedures concerning accepted
checks and credit cards;<1>
On February 24, 2004, two commissary patrons complained about the manner
in which complainant performed her duties;
On January 12, 2004, Person D grabbed complainant by the arm;
Between September 24, 2003, and February 10, 2004, a click made up of
Person E, Person F and others tried to boss complainant around;
On February 24, 2004, co-workers Person G and Person F criticized
complainant because she was away from her register in a meeting with
Person H;
On February 23, 2004, Person G and Person F allegedly said to a different
co-worker that complainant had been rude to them and that management
knew that she was being accused.
The agency dismissed issue (1) pursuant to the regulation set forth at
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
stated that complainant only alleged that her supervisor answered a
question about whether a position remained vacant. Thus, the agency
found that complainant failed to alleged a personal harm. Additionally,
the agency dismissed the remaining issues for failure to state a claim.
With regard to issue (2), the agency noted that complainant only alleged
that an unnamed person claimed that complainant spoke to a co-worker in
front of a store patron and failed to show that she suffered a personal
harm from an agency action. With regard to issue (3), the agency noted
that complainant alleged that she was asked to do something that she did
not think that the procedure permitted her to do. With regard to issue
(4), the agency noted that complainant alleged that she was counseled
based upon two store patrons complaining about the way she was performing
her duties. With regard to issue (5), the agency noted that complainant
alleged that she was subjected to a hostile work environment when Person
D grabbed her by the arm on one occasion. The agency found that this
isolated incident was not so severe and pervasive that it constitutes
an abusive/hostile environment that alters the terms, conditions and
privileges of employment. With regard to issue (6), the agency noted that
complainant alleged that a couple of co-workers were �bossy� towards her.
The agency stated that complainant failed to show she suffered a personal
harm with regard to this incident. With regard to issue (7), complainant
alleged that a couple of co-workers were critical of her because they were
unaware that she was in a meeting. The agency found that complainant
failed to show that she was aggrieved by this incident. With regard to
issue (8), the agency noted that complainant alleged that she was rude to
them and that management did not do anything to stop these accusations.
The agency found that complainant failed to show that she suffered a
personal harm resulting from these actions.
On appeal, complainant states that she was harmed when she was denied
a promotion and subjected to a hostile work environment.
Upon review, we find that the agency improperly dismissed issue (1)
for failure to state a claim. The record reveals that complainant is
claiming that she was denied a promotion. In her informal complaint of
discrimination dated February 26, 2004, complainant states that she was
subjected to harassment/non-selection-promotion. With regard to issue
(1), complainant states that she did apply for the Store Worker 6914
Vacancy Announcement #120488. Thus, we find that issue (1) concerning
complainant's non-selection for Vacancy Announcement #120488 was
improperly dismissed.
With regard to the remaining allegations in her complaint, we find
that complainant was claiming that she was subjected to a hostile work
environment. We find that the remaining allegations were properly
dismissed for failure to state a claim since the alleged incidents
were not sufficiently severe or pervasive to constitute harassment.
Further, complainant failed to show that she suffered a harm or loss
to a term, condition or privilege of employment as a result of these
alleged incidents.
Accordingly, the agency's decision dismissing issue (1) is REVERSED
and this issue, as defined in this decision, is REMANDED for further
processing in accordance with the Order stated herein. The agency's
decision dismissing issues (2) - (8) is AFFIRMED
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 29, 2004
__________________
Date
1The allegations identified in the agency
decision have been renumbered for clarity.