Beverly Fitzgerald, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01a04356 (E.E.O.C. Sep. 1, 2000)

01a04356

09-01-2000

Beverly Fitzgerald, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Beverly Fitzgerald v. Veterans Affairs

01A04356

September 1, 2000

.

Beverly Fitzgerald,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04356

Agency No. 200P-2124

DECISION

Complainant filed an appeal with this Commission from an agency's decision

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. �1614.405)

Complainant contacted the EEO office regarding claims of discrimination

based on sex. Specifically, complainant claims she was discriminated

against when: on February 2, 2000, the Recreational Therapist informed her

that his immediate supervisor had made slanderous and disparaging remarks

about complainant during a January 31, 2000 recreational staff meeting.

According to complainant, the supervisor indicated that complainant was a

barrier to him and the program and he equated it to �having a bull in your

way and you have to kick the bull in the a-- and get him out of the way.�

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, on April 7, 2000, complainant filed a formal complaint.

On April 24, 2000, the agency issue a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined that

the alleged incident was not egregious enough to render complainant an

�aggrieved� employee. According to the agency, the alleged event did

not constitute discriminatory harassment.

On appeal, complainant contends that �[t]his is not the first time I

have had an encounter with [the supervisor] regarding his behavior with

a female employee.� She argues that in her position her reputation is on

the line everyday and therefore she is harmed by the slanderous remarks.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))

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, .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).

Here, complainant contends she was discriminated against when she

learned that a slanderous comment was made about her during a meeting.

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. See 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). Although complainant

argues that her reputation was injured, we do not find that the alleged

incident resulted in a harm or loss to a term, condition or privilege

of her employment. Further, we note that complainant indicates that

this is not the first time that the individual who purportedly made the

remark has had problems with female employees. However, complainant

does not describe other incidents. Moreover, it appears as if the

other purported events concerned other employees rather than complainant

herself. Therefore, we find that the claim does not render complainant

an �aggrieved� employee.

Finally, the Commission notes that complainant views the alleged

statements as harassment. The Commission finds that the complaint is

not sufficiently severe or pervasive to state a claim of discriminatory

harassment. See Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997).

Accordingly, the agency's dismissal of the complaint for failure to

state a claim was proper and is hereby AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 1, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.