0120073187
09-14-2007
Maria A. Cofey, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Maria A. Cofey,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073187
Agency No. 073237900056
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 7, 2007, 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.
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.
While not altogether clear, a fair reading of the formal complaint dated
December 20, 2006, in conjunction with its related EEO Counselor's Report,
reveals complainant alleged that she was discriminated against on the
bases of race (African-American), sex (female), and color (Black) when
she was subjected to disparate treatment/harassment by her supervisors.
Specifically, complainant seems to allege that she received an oral
admonishment in September 2006, that on another occasions she had to give
her supervisor a copy of her travel itinerary, that her second-level
supervisor required her first-level supervisor to be present when they
discussed her performance, that her first-level supervisor said she
needed added guidance or input in setting complainant's performance
objectives, and that she did not believe management appropriately handled
her concerns about her computer.1
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered a
specific harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). The Commission has
also held that where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
the claim may survive as evidence of harassment if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23
(1993). Whether the harassment is sufficiently severe to trigger a
violation of EEO statutes must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an
employee's work performance. See id.; Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). In the instant case, the Commission concludes that
complainant's allegations, as understood from the relevant documents
of record, even if true, are not sufficiently severe or pervasive to
constitute a viable claim of a discriminatory hostile work environment.
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
September 14, 2007
__________________
Date
1 In her appeal, complainant disputes the EEO Counselor's framing of
the issues she raised. However, an examination of her formal complaint
and her statement on appeal does not clarify, with any specificity,
how she wants her claims framed.
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0120073187
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120073187