Lisa K. Mullen, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
01A44946 (E.E.O.C. Nov. 15, 2004)

01A44946

11-15-2004

Lisa K. Mullen, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Lisa K. Mullen v. Department of the Army

01A44946

11-15-04

.

Lisa K. Mullen,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A44946

Agency No. ARCEHWV04APR039

DECISION

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. Complainant alleged that she was subjected to

discrimination on the bases of disability (limitations in walking)

and reprisal when, on or about April 16, 2004, A-1, a Human Resources

official, falsely accused the her of creating a hostile work environment

for individuals with disabilities by falsely attributing statements

to her, after having discussed the matter with other agency officials.

The complainant also alleged that A-1 stated that she had a "pet name"

for another employee.

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).

The record indicates that the matter at issue occurred on April 16, 2004.

At that time, complainant and C-1, a co-worker, met with A-1 in order

for C-1 to request a reasonable accommodation. During the meeting,

there was a discussion of inappropriate names. According to complainant,

she provided, as an example, the name "Pokey." C-1 provided the name

"Floppy." Later that day, A-1 e-mailed C-1 and provided a copy to

complainant. In pertinent part, A-1 wrote that she wanted to:

stress to both [C-1] and [complainant], in my role as Selective Placement

of Individuals with Disabilities Program Coordinator, that I would caution

both of you in the use of "pet names" that you referred to each other as

during that meeting. 'Pokey' and 'Floppy' could be terms that others

might find offensive. We must be cognizant of the feelings of others,

and diligent in our consideration of others.

Both complainant and C-1 wrote A-1 and expressed their displeasure with

her e-mail. They also took exception with her use of the term "pet name."

Subsequently, complainant filed a formal complaint, which the agency

dismissed on the grounds that complainant failed to state a claim.

Complainant did not provide a statement on appeal.

The Commission finds that the complaint fails to state a claim under

the EEOC regulations. Nothing in the record indicates that complainant

suffered any harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. Complainant has failed to

explain how A-1's comments rendered her aggrieved. Remarks or comments,

unaccompanied by any concrete agency action, are not usually sufficient

to render an employee "aggrieved" for purposes of stating a valid

employment discrimination claim. See Nelson v. Department of Defense

(Defense Contract Audit Agency), EEOC Appeal No. 01A13907 (September 25,

2001).<1> Finally, we note that complainant also maintained that A-1's

comments created a hostile work environment. The Commission disagrees.

We do not find that this isolated incident was sufficiently severe or

pervasive enough to state a claim of discriminatory harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's final decision dismissing complainant's

complaint 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

____11-15-04______________

Date

1Complainant, among other things, sought

compensatory damages. We note, however, that the Commission has held

that, when a claim fails to show that a complainant is aggrieved for

purposes of Title VII and the EEOC Regulations, it will not be converted

into an actionable claim merely because the complainant has requested

a specific relief. Girard v. Department of the Treasury, EEOC Request

No. 05940379 (September 9, 1994)."