0120071233
05-08-2007
Marlo C. Brown, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Marlo C. Brown,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120071233
Agency No. 066300159
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 20, 2006, 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. In a complaint dated September 20, 2006, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American) and sex (female) when:
1. On June 1, 2006, complainant's supervisor poked her on the shoulder
to get her attention; took her to an empty office and told her that she
needed to quiet down;
2. When complainant went to the cafeteria during her break, complainant's
supervisor came to get her;
3. On an unspecified dated prior to June 1, 2006, complainant received
a letter stating that Family and Medical Leave Act use would only be
approved for chronic illnesses.
4. On an unspecified date prior to June 1, 2006, complainant called in to
work at 8:00 a.m. and spoke to her supervisor who informed complainant
that she was supposed to call in no later than 7:30 a.m. Complainant's
supervisor charged her AWOL, but later tore up the AWOL charge.
5. On unspecified dates prior to June 1, 2006, complainant's supervisor
walked back and forth in front of her workstation giving her "mean looks."
Complainant alleges further alleges that when her supervisor sees her
talking to someone, he stops walking and stares until she finishes
talking;
6. On an unspecified date prior to June 1, 2006, complainant came to
work to find that compact discs were missing from her workstation.
While speaking with a co-worker about the missing discs, complainant's
supervisor told her to get back to her work station.
7. On an unspecified date prior to June 1, 2006, when calling in to
request leave, complainant's supervisor asked her why she was requesting
leave, despite the fact that he knew she has been sick the day before.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to allege facts which, if
proven true, would show that she suffered 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). Moreover, the Commission finds that the agency's
alleged conduct was not so severe or pervasive as to alter the conditions
of complainant's employment.
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
May 8, 2007
__________________
Date
2
0120071233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071233