Alvin J. Hunter, Jr., Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01985172 (E.E.O.C. Sep. 2, 1999)

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.