Annie M. Brown, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01986213 (E.E.O.C. Jan. 12, 2000)

01986213

01-12-2000

Annie M. Brown, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Annie M. Brown, )

Complainant, )

)

v. ) Appeal No. 01986213

) Agency No. BHFR9709H1810

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On August 11, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) pertaining to her 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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> In her complaint, complainant alleged that

she was subjected to discrimination on the bases of race (black), sex

(female), age (over 40), and in reprisal for previous EEO activity when:

On August 8 1997, she was given a Notice of Proposed Suspension for

14 days by her supervisor for making false and malicious statements

against the organization and its officials;

On July 14 and 15 1997, her supervisor continuously harassed her about

her decision regarding the Voluntary Separation Incentive Program after

she had previously informed him she had not made a decision and had

until July 18th 1997 to decide;

The August 8, 1997 Notice of Proposed Suspension from her supervisor

contained a reference (placed in the Notice in reprisal) to an official

reprimand for discourtesy which was to be deleted from her personnel

record as part of a settlement agreement dated January 4, 1995; and

In reprisal, the agency failed to comply with the January 4, 1995

settlement agreement stating it would pay for two days that she had

been suspended.

In its FAD dated July 14, 1998, the agency dismissed complainant's claims

pursuant to EEOC Regulations. Specifically, the agency determined that

issue (1) was only a proposal to take a personnel action, that by virtue

of complainant's September 17, 1997 EEO Counselor contact issue (2)

was untimely, and that issues (3) and (4) concerned alleged violations

of a settlement agreement that cannot be pursued through a separate

complaint.

On appeal, complainant states that although four issues were the subject

of the complaint, she is only appealing the dismissal of issue (1)

concerning her Notice of Proposed Suspension. Therefore, the Commission

will not address the propriety of the dismissal of issues (2), (3), and

(4) in this decision. With regard to issue (1), complainant suggests

on appeal that the Notice of Proposed Suspension constituted part of

harassment creating a hostile and abusive work environment and, therefore,

should not have been dismissed.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(5)) provides, in part, that the

agency shall dismiss a complaint that alleges that a proposal to take

a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. The Commission has stated however, that a

complaint may not be dismissed under this section when the complainant

alleges, as in the present case, that the preliminary step was taken

for the purpose of harassing the individual for a prohibited reason.

In such a case, the agency's action has already affected the employee.

Rodriguez-Soto v. Army, EEO Request No. 05960646 (October 8, 1998).

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.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). In determining whether a harassment complaint states a

claim, the Commission has repeatedly examined whether a complainant's

harassment allegations, when considered together and assumed to be true,

were sufficient to state a hostile or abusive work environment claim. Id.

Additionally, the Commission has repeatedly found that claims of a few

isolated incidents of alleged harassment usually are not sufficient to

state a harassment claim. See Phillips v. Department of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996); See Cobb, supra.

Here, complainant apparently alleges that the proposed suspension

was a harassing action that contributed to a hostile and abusive work

environment. Complainant, however, has only appealed the dismissal

of her proposed suspension, issues (2) and (4) have been dismissed

and are no longer being pursued, and she has not specified any other

agency actions as contributing to a hostile work environment. Moreover,

the record indicates that the proposed suspension that is the subject

of this appeal was never issued. The Commission therefore finds that

complainant has not demonstrated that the conduct that she complains

of is so severe or pervasive that it has tainted the work environment.

We find that the single incident complained of by complainant is an

isolated event that does not rise to the level of harassment. As such,

complainant fails to state a claim of harassment.

Accordingly, the agency's decision dismissing issue (1) of complainant's

complaint is hereby AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

January 12, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant 1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.