Chester D. Corbin, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01992612 (E.E.O.C. Jan. 19, 2000)

01992612

01-19-2000

Chester D. Corbin, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Chester D. Corbin, )

Complainant, )

)

v. ) Appeal No. 01992612

) Agency No. 9-09-018

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

____________________________________)

DECISION

On February 9, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received on January 9,

1999, 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> The Commission accepts complainant's appeal

in accordance with EEOC No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

present complaint for failure to state a claim.

BACKGROUND

On September 14, 1998, complainant initiated contact with an EEO

Counselor. During the counseling period, complainant claimed that he

was being sexually harassed by his supervisor. Unable to resolve the

matter informally, complainant filed a formal complaint claiming he was

the victim of unlawful employment discrimination based on his gender

(male). Specifically, complainant alleged that he was subjected to

sexual harassment when: (1) complainant's supervisor asked a co-worker

how is �Chester the molester� referring to complainant; (2) on August

13, 1998 complainant's supervisor made gagging noises when she passed

complainant in the hall; and (3) on July 10, 1998, complainant learned

that his supervisor reported him for harassing female employees.

On January 9, 1999, complainant received the agency's final decision.

Therein, the decision dismissed his complaint for failure to state a

claim. The agency found that complainant was not an �aggrieved employee�.

We note that the agency only addressed the first incident of alleged

sexual harassment and did not include incidents (2) and (3) in its

decision.

On appeal, complainant argues that the agency's final decision failed

to consider all the incidents of sexual harassment that he raised.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and

hereinafter referred to 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 22, 1994).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find

[it] hostile or abusive� and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

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.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

However, it is well-settled that, unless the conduct is very severe,

a single incident or a group of isolated incidents will not be regarded

as creating a discriminatory work environment. See James v. Department

of Health and Human Services, EEOC Request No. 05940327 (September 20,

1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).

In the instant complaint, we find that complainant failed to show that

he suffered harm with respect to the terms, conditions or privileges of

his employment as a result of the incidents raised. While the agency

improperly failed to consider all the incidents of alleged harassment

in making its determination, even when viewed in a light most favorable

to complainant, the incidents raised are too isolated and insufficiently

severe to establish a hostile work environment. Meaney v. Department of

the Treasury, EEOC Request No. 05940169 (November 3, 1994). Consequently,

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1), for failure to state a claim.

CONCLUSION

For the reasons set forth herein, the Commission hereby AFFIRMS the

dismissal of the instant complaint for failure to state a claim.

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:

January 19, 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 Assistant1On 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.