01A44006_r
09-08-2004
Mary E. Fitas, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Mary E. Fitas v. Department of the Air Force
01A44006
September 8, 2004
.
Mary E. Fitas,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A44006
Agency No. 6N0M03009L04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 4, 2004, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), age,
and reprisal for prior EEO activity when:
On March 25, 2003, complainant was not selected for a GS-2210-11
position.
Between December 2001 and March 2003, complainant was not detailed to
a GS-2210-11 position.
On February 17, 2004, an agency official told complainant that she
could leave anytime, or words to that effect.
The agency dismissed claims (a) and (b) pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact and untimely filing
of the complaint; and dismissed claim (c) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant's attorney received a
notice of the right to file a formal discrimination complaint on January
20, 2004. The notice informed complainant that she had fifteen days from
the date of receipt of the notice in which to file a formal complaint.
The record further reflects that complainant did not file a formal
complaint within fifteen days of her attorney's receipt of this
notice but, instead filed the formal complaint on February 25, 2004.
Complainant has failed to present adequate justification, pursuant to
29 C.F.R. � 1614.604(c) for extending the filing period. We find claims
(a) and (b) are properly dismissed.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:� and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
We find the alleged incident described in claim (c) was not sufficiently
severe nor pervasive to state a claim of harassment. Accordingly claim
(c) is properly dismissed for failure to state a claim.
We therefore AFFIRM the agency's dismissal of the complaint.
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 8, 2004
__________________
Date