Arturo S. Innis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01994021 (E.E.O.C. Mar. 20, 2000)

01994021

03-20-2000

Arturo S. Innis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Arturo S. Innis, )

Complainant, )

)

v. ) Appeal No. 01994021

) Agency No. 98-4986

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On April 20, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on April 5, 1999,

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.<1> In his complaint, complainant alleged

that he was subjected to discrimination on the basis of national origin

(Panamanian) when on December 1, 1998, he was harassed when issued a

letter proposing to discharge/suspend him from employment for sexually

harassing a female employee.

The agency dismissed the complaint for alleging harm from a proposed

action. The agency noted that the proposed action was never carried out,

and that the proposal was canceled by letter dated December 31, 1998.

The record includes an undated Counselor's Report. Therein, complainant

alleges that he was �continually� accused of sexual harassment without

reason. The report notes that complainant has previously been counseled,

reprimanded, or suspended on February 6, 1995, March 14, 1995, January 7,

1997, September 5, 1997, and February 1, 1998, because of prior sexual

harassment incidents. In his January 12, 1999 formal complaint, however,

complainant only alleges harassment from the most recent incident,

from December 1998.

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 found, 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. See Rodriguez-Soto

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

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.

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). Generally, an isolated incident is insufficient to state a

cognizable claim of harassment. See id.

The incident alleged did not render complainant aggrieved. Complainant

was never removed or suspended, and the single incident of harassment

is insufficient to render complainant aggrieved. See Suttles v. United

States Postal Service, EEOC Request No. 05970496 (Apr. 8, 1999) (finding

no harm from harassment when a proposed suspension was not enforced).

Accordingly, the agency's dismissal is AFFIRMED on the grounds of failure

to state a claim.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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:

March 20, 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 Assistant1On 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.