01A00094
05-31-2001
Tanya Jordan, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Tanya Jordan v. Department of Commerce
01A00094
05-31-01
.
Tanya Jordan,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A00094
Agency No. 99-51-00707
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated September 29, 1999, concerning 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.
The appeal was postmarked September 30, 1999. Accordingly, the appeal is
timely pursuant to 29 C.F.R. � 1614.402(a), and is accepted in accordance
with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
On June 21, 1999, complainant filed a formal complaint alleging that
in reprisal for her prior Title VII EEO activity, the Director of the
Office of Financial Policy and Assistance (OFAP), made statements to
members of her staff that complainant spent an inordinate amount of time
away from her desk socializing. Specifically, the Director chastised
a member of her staff for spending too much time away from her desk in
such activities as having breakfast with complainant. Complainant also
alleges that the Director attempted to hold her, in her capacity as an
officer of the Commerce Chapter of Blacks in Government (BIG), accountable
when a member of her staff made copies of documents related to BIG, and
left her work station without approval to participate in a BIG meeting.
Complainant alleges that these statements were made after the Director
of OFAP spoke to the agency's Director of the Office of Civil Rights
(OCR) about her EEO claims.<1> Further, complainant believes that these
statements were libelous and that they could potentially impact her future
performance rating and/or upward mobility into management positions.
In response to complainant's allegations, the Director of OFAP stated
that she met with one of her employees who had been missing from her desk
on several occasions, and that the explanation she was given was that
the employee had been meeting complainant for breakfast. The Director
then indicated that shortly after her meeting with the employee, the
complainant stopped by her office to discuss the meeting. At that time,
she also discussed her concerns with complainant that another member
of her staff failed to inform her that she was involved with BIG, and
that she explained to the employee that she could not assume that she
could do these activities on official time. At that point, the Director
indicated that complainant threatened to file an EEO complaint.
The FAD dismissed complainant's complaint for failure to state a claim.
In its analysis the agency argued that the complainant had not identified
a specific employment action underlying her asserted injury and further,
that the actions complainant described were neither sufficiently pervasive
or severe enough to constitute actionable harassment.
FINDINGS AND ANALYSIS
Complainant alleged that she was subjected to a hostile working
environment when her prior EEO activity was disclosed to a OFAP Director
who was not her supervisor and that this supervisor made comments she
found to be libelous. Complainant also alleged that the OFAP Director's
statements could potentially impact her future performance rating and/or
upward mobility into management positions. However, complainant has not
demonstrated a present injury. Rather, her claim concerns speculative
and possible future harm. See Quinones v. Department of Defense, Defense
Logistics Agency, EEOC Request No. 05920051 (March 12, 1992). The absence
of an actual present harm dictates the conclusion that complainant has
failed to state a claim.
A complainant may assert a Title VII cause of action for harassment
when the discriminatory conduct is severe or pervasive enough to create
a hostile work environment on the basis of her race, color, gender,
religion, national origin or retaliation. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6; Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Further, the Commission has found that adverse actions need not
qualify as �ultimate employment actions� or materially affect the terms
or conditions of employment to constitute retaliation. The statutory
retaliation clauses prohibit any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging party or
others from engaging in protected activity. The Commission has found that
petty slights and trivial annoyances are not actionable, as they are not
likely to deter protected activity, but that more significant retaliatory
treatment could be challenged regardless of the level of harm. See EEOC
Compliance Manual on Retaliation, No. 915.003 (May 20, 1998), p. 8-13.
After a careful review of the record, the Commission finds that
complainant failed to state a claim. In her complaint, complainant alleged
that she was subject to reprisal when the Director of OFAP accused her
of �visiting� a co-worker (in the Director's division) too much and
implying that she had some responsibility for the actions of a member
of the director's staff who was also a member of BIG. The Commission
finds that the agency's analysis and conclusion in its FAD and brief
on appeal were correct. Specifically, the agency found that even if
complainant's claim concerning the Director of OCR was incorporated
and all three incidents complainant described were viewed in the light
most favorable to complainant, she has not described a harm to a term,
condition, or privilege of employment, and has not described conduct
sufficiently severe or pervasive to constitute an actionable claim
of harassment. Further, complainant has not shown that the actions of
the OFAP Director were reasonably likely to deter her or others from
engaging in protected activity. Moreover, the Commission finds that
the agency was correct in finding that complainant's prior complaints of
harassment and discrimination were settled and that she could not revive
those claims except in a claim for breach of the settlement agreement.
CONCLUSION
The agency's decision to dismiss complainant's complaint for failure to
state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____05-31-01______________
Date
1While complainant asserts that the meeting between the Directors of
OFAP and OCR took place prior to the reprisal against her, the record
contains no evidence as to when this meeting actually occurred.