Scottie J. McClam, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionDec 16, 2003
01A35391_r (E.E.O.C. Dec. 16, 2003)

01A35391_r

12-16-2003

Scottie J. McClam, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Scottie J. McClam v. Department of Defense

01A35391

December 16, 2003

.

Scottie J. McClam,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A35391

Agency No. 03CD016

DECISION

Complainant appeals to the Commission from an August 21, 2003 agency

decision dismissing her complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. The agency decision defined the issue of

the complaint as whether complainant was subjected to discrimination

on the bases of race (African-American), sex (male), color (black),

and reprisal, because management continued to create a hostile work

environment through intimidation, threats, and directing and concurring

with the unethical behavior of co-workers towards her. Specifically,

the agency decision noted that complainant alleged that on May 14, 2003,

the Director of Communications and Directives threatened complainant with

a potential security violation, involving the unauthorized disclosure of

classified documents. He allegedly stated: �Let me tell you a little

story[;] there was a guy who worked here a long time ago and he lost a

classified burn bag containing classified information and he was fired

and that could happen to you too.� The Director allegedly laughed and

walked away.

Upon review of the record, the Commission finds that the incidents

alleged are not sufficiently severe or pervasive so as to state a claim of

harassment as creating a hostile work environment. 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). Therefore, we find that

the complaint was properly dismissed for failure to state a claim.

The agency's dismissal of the 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

December 16, 2003

__________________

Date