01A01056
12-08-2000
Linda J. Breshears, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Linda J. Breshears v. U.S. Department of the Air Force
01A01056
December 8, 2000
.
Linda J. Breshears,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A01056
Agency No. AL900000153
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1> In a
complaint dated August 24, 1999, the complainant claimed that she was
subjected to discrimination based on race and sex when:
On May 25, 1999, complainant's supervisor purportedly said to her:
�[Complainant] do you want some?�which generated teasing from co-workers;
and,
On June 3, 1999, complainant's supervisor purportedly said to her: �the
closer to the bone, the sweeter the meat� and �the blacker the berry,
the sweeter the juice.�
The agency dismissed the complaint for failure to state a claim, finding
that conduct at issue was not sufficiently severe or pervasive to state
a claim of harassment due to a hostile work environment. Regarding claim
1, the agency determined that the supervisor quickly informed complainant
that the comment referred to overtime, and that complainant did not claim
that the subsequent co-worker teasing affected her working conditions.
Regarding claim 2, the agency determined that the comments did not
render complainant aggrieved, and that they did not create a hostile
working environment.
Complainant now appeals this determination. In response, the agency
elaborates upon its reasons for dismissing the complaint.
In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1988);
Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1993);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in
Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998): �simple teasing,
offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the �terms and conditions
of employment.'�
The Commission determines that the instant complaint fails to state
a claim because the conduct at issue, even if proven to be true,
is not sufficiently severe or pervasive as to alter the conditions of
complainant's employment. Moreover, we find that complainant does
not otherwise challenge an unlawful employment policy or practice,
or demonstrate that she was rendered aggrieved. See 29 C.F.R. �
1614.107(a)(1); Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Accordingly, the agency's final decision
dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 8, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.