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.