01A02603
07-06-2000
Bobby P. Amos, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Bobby P. Amos v. Department of Veterans Affairs
01A02603
July 6, 2000
Bobby P. Amos, )
Complainant, )
)
v. ) Appeal No. 01A02603
) Agency No. 99-5228
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision regarding 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> 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 race and reprisal. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, on September 28, 1999,
complainant filed a formal complaint. The agency framed the claim as
follows:
On August 27, 1999, complainant's supervisor sent an e-mail message in
which she made the following derogatory statement: "[Addressee's name] -
if you have the name of this employer, I'll have my sneaky and underhanded
staff make a phone call. Thanks for the lead."
On February 10, 2000, the agency issued a decision dismissing the
complaint for failure to state a claim. The agency determined that
complainant's underlying claim was one of harassment. According to
the agency, one or two isolated incidents did not rise to the level of
harassment.
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).
Complainant contends he was discriminated against when his supervisor
referred to her staff, including complainant, as "sneaky and underhanded."
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). Complainant has not
shown that the alleged remark resulted in a harm or loss regarding a
term, condition or privilege of his employment. We do not find that
the alleged incident rendered complainant an "aggrieved" employee.
We also find that the complaint is not sufficient 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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.