01A23832_r
11-19-2002
Fanny E. DeVaughn, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Fanny E. DeVaughn v. Department of the Navy
01A23832
November 19, 2002
.
Fanny E. DeVaughn,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23832
Agency No. DON-02-67004-006
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 19, 2002, 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.
In her complaint, complainant alleged that she was the victim of unlawful
employment discrimination on the bases of race, national origin, and in
reprisal for prior protected activity when:
1. she received an e-mail from a coworker mocking her accent and speech
patterns; and
2. the agency took no preventative action to ensure that this type of
behavior does not occur in the work place, in violation of the July 20,
2000 settlement agreement which the parties entered.
In its FAD, the agency dismissed claim (1) on the grounds of mootness.
The agency dismissed claim (2) for stating the same claim that has been
decided by the agency. The agency found that complainant received the
specific relief as stated in the July 20, 2000 settlement agreement.<1>
Upon review, the Commission determines that both claims are more properly
analyzed in terms of whether they state a claim. EEOC Regulation
29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint
which fails to state a claim within the meaning of 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his capacity as an employee
or applicant for employment. 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; �1614.106(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 the present case, complainant is alleging that she was subjected to
harassment when she received the one e-mail from a coworker mocking her
accent and speech patterns, and the agency management officials failed
to take any action to prevent the harassment. 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). The Commission determines that
the matters alleged in the present complaint do not identify conduct of
sufficient severity or pervasiveness to constitute a claim of harassment,
i.e., they fail to indicate a present harm or loss regarding a term,
condition or privilege of complainant's employment. Therefore, the
agency's dismissal of the complaint is AFFIRMED for the reasons set
forth herein.
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
November 19, 2002
__________________
Date
1The settlement agreement provided that the
agency would pay complainant $10,000.00; and award her 200 hours of sick
leave and 90 hours of annual leave.