Carl E. Sanchez, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01995187 (E.E.O.C. Feb. 28, 2000)

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.