01980916
10-14-1998
Andres Martinez Jr., Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Andres Martinez Jr., )
Appellant, )
)
)
v. ) Appeal No. 01980916
) Agency No. FW-97-50
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
On November 10, 1997, appellant filed a timely appeal from a final
agency decision (FAD) received by him on October 21, 1997, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination in reprisal for prior EEO activity when on May 12, 1997,
the Chief, Fair Housing and Equal Opportunity, Investigation Branch,
harassed him by typing a message on appellant's computer and making a
crank telephone call.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a) , for failure to state a claim. Specifically,
the agency determined that appellant was not aggrieved as a result
of the incident because he suffered no harm to the terms, conditions,
or privileges of his employment.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer, that is, a present
and unresolved harm or loss affecting a term, condition or privilege of
his/her employment". Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
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).
However, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
In the instant complaint, we find that the incident about which appellant
complains, while unprofessional, is too isolated and insufficiently
severe to be regarded as creating a discriminatory work environment.
Consequently, the agency properly dismissed appellant's complaint for
failure to state a claim.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
AFFIRMED for the reasons set forth herein.
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(c).
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).
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:
Oct. 14, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations