Helen McGregor,
Complainant,

v. 

R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 01A55945

Agency No. 2003-0580-2005102828

DECISION

Complainant filed a timely appeal with this Commission from the agency's
decision dated August 25, 2005, 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. 

On June 6, 2005, complainant, an Information Receptionist at the agency's
medical center in Houston, Texas, contacted via telephone the Fisher
House Manager (Manager) on behalf of a patient of the agency.  During the
conversation, complainant asked the Manager if he needed a secretary.
He responded by telling complainant that she was "not pretty enough,
not smart enough, and not a size 5."  Complainant responded with "Are
you stating that I am dumb, ugly, and too fat."  Complainant indicated
that the Manager stated that he was "just playing."1

On June 10, 2005, complainant contacted an EEO Counselor regarding
the telephone conversation with the Manager.   In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Black), color (Black), and age (D.O.B. 07/26/54) based
on the conversation with the Manager on June 6, 2005.

The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim.  Specifically, the agency noted that
complainant failed to state a claim of harassment for the alleged event
was not sufficiently severe or pervasive.  Accordingly, the agency
dismissed the complaint.  Complainant appealed asserting that she was
made to feel embarrass of her looks and sought professional counseling
and medications due to the hurtful words.  

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim.  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. 

A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state
a claim.  Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).  Upon review, we note that the Manager's comment was
insensitive and inappropriate.  However, looking at the matter as a
whole, we find that this single event was not severe enough to state a
claim of harassment.  

Accordingly, we affirm the agency's dismissal of the complaint.

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

August 2, 2006

__________________
Date


1 The record indicated that complainant raised the issue of the
telephone conversation with the agency's External Affair Executive
(Executive).  After reading the report from complainant, the Executive
called the Manager into her office and questioned him about the comment.
The Executive informed him that such comments were inappropriate and
would not be tolerated.  The Executive had the Manager apologize to
complainant and restated in front of both parties that such comments
were inappropriate and would not be tolerated.	The Executive recommended
some type of sensitivity/diversity training for the Manager.
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01A55945





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036





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