Debra M. Emerich, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
01992861 (E.E.O.C. Aug. 29, 2000)

01992861

08-29-2000

Debra M. Emerich, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Debra M. Emerich v. Department of the Air Force

01992861

August 29, 2000

.

Debra M. Emerich,

Complainant,

v.

F. Whitten Peters,

Acting Secretary,

Department of the Air Force,

Agency.

Appeal No. 01992861

Agency No. 9VIM99042

DECISION

Debra M. Emerich (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated January 27, 1999 dismissing

her complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal

is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). In her complaint, complainant alleged that

she was subjected to discrimination on the bases of race (White), color

(white) and disability (reactive airways) when, on October 29, 1998,

a co-worker made malicious, derogatory and unfounded racial statements

against her, which embarrassed and humiliated her in front of her other

co-workers. The statements included such comments as �lily white world,�

�sitting on your white a�,� and �I'll kick your white a� if you talk

about my overtime.�

The agency dismissed the complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. Section 1614.107(a)(1)) , for failing to state a claim.

Specifically, the agency concluded that complainant did not suffer a

loss with respect to a term, condition, or privilege of employment.

On appeal, complainant contends that she was �totally offended, humiliated

and threatened� by the comments and that certain witnesses to the incident

were not interviewed. In response, the agency reiterates that complainant

did not allege an action that affected a term, condition, or privilege

of employment. The agency goes on to argue that the complaint also fails

to state a claim of harassment, noting that one incident of inappropriate

comments is not sufficiently severe or pervasive to establish a hostile

environment.

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;

� 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). Here, complainant does

not challenge an agency action or inaction regarding a specific term,

condition or privilege of employment. It is possible that the complaint

nonetheless states a claim of harassment.

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. See 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).

The claim in the case at hand involves an isolated incident in which a

co-worker made a limited number of derogatory comments to complainant.

Such conduct is not sufficiently severe or pervasive to state a claim

of harassment.

Accordingly, the agency's dismissal of the complaint for failure to

state a claim was proper and is hereby AFFIRMED.

As a final matter, however, the Commission notes that the use of racial

epithets by individuals of any race is reprehensible, and should not

be condoned by the agency. See Hubbert v. Department of the Army, EEOC

Request No. 05910133 (March 19, 1991); Criner v. Department of the Navy,

EEOC Request No. 05880097 (July 21, 1988). The agency is reminded that

pervasive use of racial epithets could create a hostile environment in

violation of Title VII, and the agency should take whatever counseling

or training actions it deems necessary to ensure that the use of racial

epithets ceases. Id.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 29, 2000

__________________

Date

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.