01991789
10-14-1999
Doretha Fish, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Doretha Fish v. Department of the Air Force
01991789
October 14, 1999
Doretha Fish, )
Appellant, )
) Appeal No. 01991789
v. )
) Agency No. 9V1M98391
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Appellant 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, as amended,
42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The appeal is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on August 25, 1998 alleging
discrimination on the bases of race (African American), color (Black),
handicap (physical and mental), and reprisal (prior EEO activity) when:
(a) from June 1, 1998 to June 29, 1998, her first level supervisor put
his hand on her desk until the buzzer rang before all breaks, lunch,
and at the end of the first shift;
(b) on July 14, 1998, her first level supervisor charged her fifteen
minutes annual leave, although he excused two white males when they
reported late for duty;
(c) on July 27, 1998, she was asked to leave the work area because she
had been sent home by Occupational Medicine Services;
(d) on June 10, 1998, her second level supervisor told her that he had
brought her back off Worker's Compensation to save the agency money and
to place her on medical retirement;
(e) on July 17, 1998, a co-worker told her that her first level supervisor
said to tell her that he had insurance to cover whatever he does to
anyone on the job;
(f) on July 21, 1998, her first level supervisor watched her and a
co-worker as they walked to the Tool Crib and back;
(g) on July 21, 1998, her first level supervisor questioned her as to why
she did not bring the co-worker who went to the Tool Crib with her; and
(h) on July 22, 1998, she became aware that her first level supervisor
had a vendetta against her because she had implicated his nephew in a
previous complaint.
In its final agency decision, the agency dismissed the last five
allegations upon concluding that they failed to state a claim. The
agency reasoned that, in each of these allegations, appellant failed
to demonstrate how the alleged actions adversely impacts upon a term,
condition, or privilege of her employment. Upon conducting an harassment
analysis, the agency decided that statements of possible future harm,
ordinary supervisory actions, and vague allegations of a vendetta do
not rise to the level of stating a claim for hostile work environment.
The first three allegations were accepted for investigation. This appeal
followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
However, in determining whether a harassment complaint states a claim in
cases where a complainant had not alleged disparate treatment regarding
a specific term, condition, or privilege of employment, 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. See Miller v. U.S. Postal
Service, EEOC Request No. 05941016 (June 2, 1995).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment allegations are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that allegations of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually 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).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Also, the trier of fact must consider all of the circumstances, including
the following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In the present case, the agency, in its brief on appeal, characterizes
the dismissed allegations as mere statements of future actions, ordinary
supervisory actions, and vague allegations of a vendetta. The issue
here is not how appellant's allegations can be described when analyzed
individually, rather it is whether a reasonable person in appellant's
shoes would have found the alleged actions to be hostile when considering
all of the incidents together<1>. It is important to note, however, that
the conduct, when considered together, must be so objectively offensive
as to alter the conditions of the victim's employment.<2> The conditions
of employment are altered only if the harassment culminated in a tangible
employment action or was sufficiently severe or pervasive to create a
hostile work environment.<3> We find that the dismissed allegations,
even when considered in conjunction with the each other and those
accepted, did not "alter the conditions of the victim's employment."
Based on the foregoing, we hold that the agency's decision to dismiss
those allegations for failure to state a claim was appropriate.
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 14, 1999
____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (holding that when an agency is confronted with
claims involving multiple allegations, it should not define the issues
in the complaint individually if an analogous theme unites the matters
contained therein. Instead, the agency should look at these incidents,
in the aggregate, as a claim of harassment).
2 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (citing Oncale
v. Sundowner Offshore Services, Inc., 118 S.Ct. 998, 1002 (1998).
3 Id.