0120082924
11-10-2008
Patricia L. Kaczynski, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.
Patricia L. Kaczynski,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency),
Agency.
Appeal No. 0120082924
Agency No. DTRA-08-OP-CSME-005
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). In her complaint, dated March 27, 2008, complainant,
Program Analyst, YA-343-02, alleged discrimination based on sex (female)
and age (over 40) when:
(1) The Chief, Consequence Management Division (CMD), singled her out
and subjected her to a hostile work environment in an email to the CMD
dated January 9, 2008, instructing that complainant be counseled in
regards to FY2008 performance and contribution payout;
(2) On November 21, 2007, she was informed by a coworker that her acting
immediate supervisor (S1) told the coworker that the Chief went to Human
Resources to find out about complainant's eligibility to retire or to
move her to a different division;
(3) In a meeting on October 26, 2007, with the Chief and S1, she was
instructed that she was not to interact with support/contracting staff
(CUBIC); and
(4) The Chief demeaned her and minimized her concerns during a meeting
on September 18, 2007, about contractor (CUBIC) support by telling her
that one of the contractors about whom she raised concerns had a college
degree and that none of the contactor support staff in question fell
asleep during a conference that he recently attended.
With regard to claim (1), the Chief stated that he sent out the alleged
electronic message to all his employees to insure that all employees,
including complainant, receive NSPS counseling. Complainant clearly
indicated that she indeed received the rating of "Valued Employee,"
and that the message suggested her performance rating was low was,
indeed, speculative. With regard to claims (3) and (4), it appears
that these comments/actions were made by the Chief and S1 in response
to complainant's prior comments made to the Chief. Specifically,
complainant previously informed the Chief that at a recent seminar,
"the table top exercise" in Hawaii, the CUBIC support staff who was
supposed to be taking notes fell asleep. Complainant acknowledged that
the Chief thanked her for the foregoing input. There is no evidence in
the record that complainant was subsequently forced to retire or to move
to another division.
Although complainant claimed that the alleged incidents constituted
harassment, the Commission does not find that the alleged actions, when
considered together, were sufficiently severe or pervasive to alter the
conditions of her employment such as to state a claim of harassment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
None of the incidents, by themselves, rendered complainant aggrieved
and therefore do not state independent claims of discrimination.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
11/10/08
__________________
Date
2
0120082924
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036