01A22276
07-03-2002
Delphine G. Campbell, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Delphine G. Campbell v. Department of the Treasury
01A22276
07-03-02
.
Delphine G. Campbell,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22276
Agency No. TD0023089
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning 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. The final agency decision was dated
February 15, 2002, and received by complainant on February 22, 2002.
The appeal was postmarked March 12, 2002. Accordingly, the appeal
is timely and the Commission hereby accepts it in accordance with 29
C.F.R. �1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed
complainant's complaint for failure to state a claim.
BACKGROUND
In a complaint dated January 23, 2002, complainant alleged that she was
subjected to discrimination on the bases of race (African-American)
and sex (female) when, on September 12, 2001, the Executive Vice
President of the National Treasury Employees Union (NTEU) Chapter
71 subjected her to inappropriate language and racially offensive
remarks. The event occurred when a union official and the complainant
met at the Philadelphia IRS Campus in the space utilized by the NTEU.
The complainant contends that the union official started the meeting by
verbally attacking her and ordered her to go to her desk and pack up her
belongings. When the complainant stated that she would not leave, the
union official threatened the complainant and made a disparaging comment.
The verbal exchange escalated and culminating with the union official's
racially offensive remark.
In its final agency decision, the agency dismissed the complaint on
the basis that it failed to state a claim because complainant was not
aggrieved, in that she did not show that she had suffered a direct
and personal deprivation at the hands of her employer, and because no
harm was presented as resulting from the isolated remarks. Finally, the
agency dismissed for failure to state a claim because the complainant
had not shown that the incident was severe enough to rise to the level
of discriminatory harassment in and of itself.
This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 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 21, 1994). In the instant claim,
the complainant was subjected to inappropriate language and racially
offensive remarks. However, the complainant alleges this conduct was
propagated by a union official against the complainant in her role as a
union official. Complainant alleges the remarks were in the context of
a conversation regarding her role as 1st Vice President of Chapter 71.
Thus, complainant failed to show how the alleged remarks caused her a
harm or loss to a term, condition or privilege of employment.
Furthermore, 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. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). In the instant case,
no concrete agency action is alleged by the complainant.
The complainant's complaint also alleges that the incident was 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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Here, although we note that the complainant is claiming the incident
in question is part of a pattern of harassment, because the incident at
issue here is not so severe as to rise to the level of harassment, we find
that complainant failed to state an actionable claim of harassment. See
Harris, supra; Cobb, supra. The complainant does not assert that the
union official has made similar comments or remarks to her in the past,
thus, we find this one incident is not severe enough to render the
workplace a hostile work environment.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
___07-03-02_______________
Date