01995187
02-28-2000
Carl E. Sanchez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Carl E. Sanchez, )
Complainant, )
)
v. ) Appeal No. 01995187
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 11, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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 reprisal (prior EEO activity) when:
he was harassed when a response to his Freedom of Information Act (FOIA)
request of February 1, 1999, was not received as of March 15, 1999;
the Assistant Chief, Veterans Service Center (AC) requested that he
assist the Division Secretary with an assignment and when he attempted
to explain his workload status, she responded rudely and later informed
him that his assistance would not be needed; and
he was subjected to a hostile work environment.
The agency dismissed Issue Nos. 1 and 2 pursuant to EEOC Regulation
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 1614.107(a)(1)), for failure to state a claim, noting
that the relief requested in counseling had been granted and, as such,
the complainant had failed to show that he was subjected to an unresolved
harm or loss.
The agency dismissed Issue No. 3 pursuant to 29 C.F.R. �� 1614.107(a)(1)
and 107(a)(2) for failure to state a claim and as a matter not previously
discussed with an EEO Counselor. The agency noted that only Issue Nos. 1
and 2 were discussed with the counselor. Moreover, the agency concluded
that if complainant intended to allege that these incidents created
a hostile environment, his claim failed because the occurrences noted
were isolated and did not rise to the level of an actionable hostile
work environment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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(a); � 1614.106(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. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In regard to Issue Nos. 1 and 2, the agency concluded that because it
provided the relief complainant requested during counseling�sensitivity
training to management officials and notification of the status of his
FOIA request�complainant was not aggrieved. On his formal complaint form,
however, complainant also requested compensatory damages. The agency
cannot, therefore, base its dismissal on the argument that complainant's
requested relief has been granted. We find, however, that the agency
was nonetheless correct in dismissing complainant's complaint.
Issue No. 1 fails to state a claim because the Commission does not have
jurisdiction over the processing of FOIA requests. Instead, persons
having a dispute regarding such requests should bring any appeals about
the processing of his or her FOIA requests under the appropriate FOIA
regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386
(June 12, 1997). In the instant case, therefore, complainant's allegation
that the agency improperly handled his FOIA request fails to state a
claim within the purview of the EEOC regulations.
Issue No. 2 also fails to state a claim. Complainant alleged that,
due to his prior EEO activity, AC was intentionally rude to him when
discussing an assignment. Complainant noted that other managers also
ignore him and that he felt these interactions might hurt his chances
for career advancement. We note, however, that 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. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Here, even assuming AC was intentionally rude to complainant, complainant
did not allege that a concrete action was taken against him. Although he
was not assigned to the project involved, it was he who indicated to
AC that he had a full workload. Moreover, complainant's fear that his
chances for career advancement might be hurt by management's attitude
toward him concerns speculative and possible future harm. There is no
present injury to complainant and, accordingly, the absence of an actual
present harm dictates the conclusion that complainant has failed to state
a claim. See Parks v. Department of Defense, EEOC Request No. 059503141
(September 11, 1995) citing Drummond v. Department of the Army, EEOC
Request No. 05940574 (February 7, 1995).
With regard to Issue No. 3, the complaint form merely lists �creating
hostile work environment� without providing any dates or descriptions.
We agree that this fails to state a claim, even assuming that complainant
intended by this to claim to argue that Issue Nos. 1 and 2 together
created a hostile work environment. Harassment is actionable only if
it is sufficiently severe and pervasive to alter the conditions of the
complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993). Here, the two incidents described by complainant do not rise
to this level.
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
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:
02/28/00
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 after it was mailed. I certify
that this 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.