0120091536
07-07-2009
Vera J. Robinson,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091536
Agency No. IRS090144F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 12, 2009, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under Title
VII when:
1. On or about October 30, 2008, and November 10, 2008, the agency failed
to comply and take remedial action as specified in a previous EEOC Order.
2. Beginning on or about October 30, 2008, complainant was assigned a
case inventory managed by her former manager; and
3. In an April 15, 2008 affidavit provided in another complaint, the
Area Manager made sarcastic remarks about complainant.
The agency dismissed claim 1 for failure to state a claim on the grounds
that these were compliance matters and complainant should contact
the EEOC, not the agency. The agency dismissed claim 2 for failure
to state a claim on the grounds that complainant was not aggrieved.
The agency dismissed claim 3 on the grounds that statements made
during an administrative proceeding cannot be used as grounds for an
EEO complaint.
In her Formal Complaint, complainant specifically refers to the agency's
failure to comply with an order from a prior decision of this Commission.
The record shows that on September 10, 2008, the Commission issued a
Denial of Reconsideration and ordered the agency to comply with various
actions identified therein. See Robinson v. Treasury, EEOC Request
No. 0520080667 (September 10, 2008). Because the matter concerns a
compliance matter and not a new claim of employment discrimination,
claim 1 is dismissed for failure to state a claim. Complainant, however,
is hereby notified that when seeking to enforce compliance of a prior
Commission decision, she should contact her compliance officer at the
Commission, not the agency.
With regards to claims 2 and 3, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that she was subjected to unwelcome verbal or physical
conduct involving her protected classes, that the harassment complained of
was based on her statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with her work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has she shown 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). Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
July 7, 2009
__________________
Date
2
0120091536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091536