01986552
03-22-2000
Carl Johnson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Carl Johnson v. Department of the Navy
01986552
March 22, 2000
Carl Johnson, )
Complainant, )
)
v. ) Appeal No. 01986552
) Agency No. DON 98-00251-077
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On August 25, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on August 10, 1998,
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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination in the form
of harassment, on the bases of race, color, age, and reprisal when on
February 2, 1998, he was referred to the Workforce Brokering Program
for possible reassignment.
The agency dismissed complainant's complaint pursuant to Volume 64
Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(5)), for alleging a proposal to take a personnel
action is discriminatory. Specifically, the agency found that complainant
was not reassigned to another position, nor has his grade or rate of pay
been affected by having been placed in the Workforce Brokering Program.
The agency maintains that its conduct in this instance amounted only to
a proposal to take action, which was never made effective.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the agency shall
dismiss a complaint that alleges a proposal to take a personnel action,
or other preliminary step to taking a personnel action, is discriminatory.
The Commission has stated, 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 taking 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,
EEOC Request No. 05960646 (October 8, 1998).
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.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13,k 1997). In determining whether a harassment complaint states a
claim, the Commission has repeatedly examined whether a complainant's
harassment allegations, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
Id. Moreover, the Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment are usually not sufficient to
state harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); See Cobb, supra.
Here, we find that in this instance, complainant's allegations do not
rise to the level of actionable harassment. Without more persuasive
evidence, we find that the agency's decision was proper. Accordingly,
the agency's decision dismissing complainant's complaint is hereby
AFFIRMED for the reasons set forth herein.
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 22, 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 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.