01985172
09-02-1999
Alvin J. Hunter, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Alvin J. Hunter, Jr., )
Appellant, )
)
v. ) Appeal No. 01985172
) Agency No. AWGYF09804I0200
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The final agency decision was received by
appellant on June 10, 1998. The appeal was postmarked June 17, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. � 1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On April 29, 1998, appellant initiated contact with an EEO counselor.
Informal efforts to resolve his concerns were unsuccessful.
Appellant filed a formal complaint on May 20, 1998, alleging that he was
the victim of unlawful employment discrimination on the bases of race
(Black) and reprisal (prior EEO activity). Responding to a request
from the agency made on May 21, 1998, appellant clarified his claims
in a June 4, 1998 letter. Specifically, appellant alleged that he was
harassed and unnecessarily badgered and interrogated when the Lock and
Dam Mechanic Supervisor, accused him of not working and reported him to
the Maintenance Mechanic Supervisor, who continued to badger and question
him, ignoring his request for union representation. Appellant alleged
that he suffers from hypertension and that this incident affected his
condition, causing him undue stress and elevating his blood pressure.
He further alleges that he suffered embarrassment, humiliation and mental
anguish due to the behavior of these supervisors.
The agency issued a final agency decision on June 9, 1998, dismissing
appellant's complaint for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a). The agency found that appellant failed to identify how
the supervisory inquiries caused a present harm or loss with respect
to a term, condition or privilege of employment. Further, while the
agency acknowledged
that a claim may be stated if the complaint allegations are sufficient
to state a hostile or abusive environment claim, it noted that the
allegations appellant raised regarding the behavior of his supervisors
were not sufficient to establish such a claim.
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a), for failure to state a claim.
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). The Commission's federal sector case precedent has long
defined an �aggrieved employee� as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Appellant alleged that on April 21, 1998 he was the victim of race
and reprisal discrimination when a supervisor accused him of not doing
work and reported this behavior to another supervisor who came to the
job site and interrogated and badgered the appellant, refusing his
request for union representation. While appellant claims that this
incident involved a conspiracy between the supervisors to terminate his
employment, his complaint (along with the June 4, 1998 letter clarifying
his complaint)refers only to these two incidents, involving questions
posed and comments directed to him by two supervisors. The appellant has
not been terminated nor has he received discipline of any kind stemming
from this event.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). The remarks and questions posed by
Supervisors O'Dowd and Hart were not accompanied by any concrete action.
We therefore find that the incidents addressed in appellant's formal
complaint do not allege a personal loss or harm suffered with respect
to a term, condition, or privilege of employment sufficient to render
appellant aggrieved for purposes of Title VII.
Even where a complaint does not challenge an agency action or inaction
regarding a term, condition or privilege of employment, the complainant
may still state a claim if the complaint
allegations are sufficient to state a hostile or abusive environment
claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17,21;
114 S.Ct. 367,370 (1993). In Harris v. Forklift Systems, Inc., the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson,
477 U.S. 57,67 (1986), that harassment is actionable if 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 only actionable if the harassment to which
the complainant has allegedly 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.
A 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). However, as noted above, Commission precedent holds that
a supervisor's remarks on several occasions unaccompanied by any
concrete action are not sufficient to state a claim of discriminatory
harassment. Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996). Moreover, it is well-settled that,
unless the conduct is very severe, a single incident or a group of
isolated incidents will not be regard as creating a discriminatory
work environment. James v. Department of Health and Human Services,
EEOC Request No. 05940327 (September 20, 1994).
In the instant case, appellant challenges two related incidents involving
interrogating and badgering by two supervisors who ignored his requests
for union representation. Just as appellant is not aggrieved based
on these events because they do not allege a personal loss or harm
suffered with respect to a term, condition or privilege of employment,
as described above, he also is not the victim of a hostile or abusive
work environment. The complaint challenges isolated incidents which
are not severe enough to state a claim of discriminatory harassment.
Zhang v. United States Postal Service, EEOC Request No. 05940481 (July
17, 1998) (supervisor yelling at appellant on one occasion is not a very
severe incident, i.e., not an incident sufficient to alter appellant's
work environment); Banks v. Department of Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995)
(allegations that on one occasion a supervisor threw a file on
complainant's desk and berated her in a loud voice in the presence of
other employees, causing her embarrassment and humiliation, insufficient
to state a harassment complaint).
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was proper and is AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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.F.R.). 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:
Sept. 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We note that by letter dated July 28, 1998, the agency requested
consolidation of an attached informal complaint with the complaint
in this case. Upon review, we determined that this informal complaint
alleges discrimination on the basis of the agency's final agency decision
in the matter at hand. Nothing contained in these documents alters the
affirmation of the agency's decision.