Ellis H. Maupin, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A12856 (E.E.O.C. Sep. 26, 2002)

01A12856

09-26-2002

Ellis H. Maupin, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Ellis H. Maupin v. Department of Energy

01A12856

September 26, 2002

.

Ellis H. Maupin,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01A12856

Agency No. 0107HQ

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 18, 2000, dismissing his 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 appeal

is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's dismissal of complainant's complaint.

The record reveals that complainant commenced working for the agency

in July 1973. In 1985, he was elected as the president of the National

Treasury Employees Union (NTEU) Chapter 213. As president, complainant

negotiates agreements with management, and represents employees in

resolving disputes either through grievances or in negotiated settlements.

In June 2000, complainant contends that it became apparent that the

agency head (M1) possessed a strong dislike for him because of his

race, sex, and his participation in protected activity. Specifically,

complainant contends that from December 1998 to June 2000, several

incidents occurred whereby disparaging remarks were communicated to him

by M1 and other key management officials. In or around January 1999,

a management official stated that complainant �needed to be put in his

place.� Another incident occurred in May 1999 during the planning of a

rally against the agency when a management official told complainant to

�watch his back.� Complainant contends that the management officials

who were involved in the incidents were rewarded with promotions.

Complainant sought EEO counseling on June 8, 2000. Because of a

conflict of interest, complainant asked that another agency investigate

his complaint. On August 31, 2000, complainant elected to enter into

mediation to resolve his concerns. Mediation failed and complainant

filed a formal complaint on October 25, 2000. Complainant alleged that he

was subjected to discrimination on the bases of race (African-American),

sex (male), and/or reprisal (prior EEO activity under Title VII) when:

M1 personally took actions to undermine his leadership as President of

NTEU, Chapter 213, using Blacks in Government (BIG), and other agency

officials to carry out his intentions;

M1 pursued partnership with Chapter 213, but did not want to deal

with him;

M1 actively colluded with BIG, rewarding its officers, for doing his

bidding to force him out of the union presidency and to undermine his

authority;

M1 repeatedly threatened him personally, as well as sent threatening

messages via other staff;

he became the subject of derogatory and disparaging remarks such as

he �sulks� and is a �whiner� and �dresses professional because he grew

up poor�;

M1 and his senior staff used the Executive Vice President (VP1) of NTEU's

Chapter 213 to undermine his leadership;

BIG published harassing and disparaging articles about him in its June 7,

2000, newsletter;

VP1 contacted the NTEU National Office and lodged a complaint that he

was using the union to settle his EEO complaint; and

on November 6, 2000, an article appeared in the Federal Times with

statements indicating complainant's dislike for M1.

On December 18, 2000, the agency dismissed the complaint on the bases

that complainant had not timely contacted an EEO counselor contact

and/or failed to state a claim. See 29 C.F.R. � 1614.107(a)(1) and (2).

In regard to the timeliness of his claims, the FAD concluded that because

complainant contacted an EEO counselor on June 8, 2000, in order to be

considered timely, the actions complained of must have occurred no earlier

than April 25, 2000. The FAD found that complainant was aware that he was

the target of disparaging remarks as early as December 1998. The FAD also

found that complainant realized during the spring of 1999 that the named

individuals were trying to manipulate the June 1999 election. In regard

to his failure to state a claim, the FAD concluded that complainant's

claim centers entirely on his affiliation with the union and does not

pertain to any term, condition, or privilege of his employment.

On appeal, complainant contends that his EEO counselor contact was timely.

In particular, complainant asserts that he did not become aware that the

harassing actions toward him were motivated by discriminatory animus

and/or retaliatory motive until June 2000. Complainant also contends

that his race and sex was a factor in the harassing behavior because he

was running against a Caucasian female in the last union election.

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). In order to state a claim under the regulations set forth at

29 C.F.R. Part 1614, complainant must show that he is �aggrieved.� See

Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,

1990). 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).

Here, complainant contends that the agency discriminated against him on

the bases of race, sex, and/or reprisal when M1 personally took actions

to undermine his leadership as union president, using BIG, and other

agency officials to carry out his intentions. However, the Commission

has held that, except in limited circumstances, the EEO process is not

a mechanism to attack internal union matters or proceedings, and such

claims are properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Because the Commission finds that (1), (2), (3), (6), (7), (8) and (9)

are based on complainant's position as union president, we conclude that

complainant failed to state a claim. The Commission further notes that

(7) and (9) do not challenge an agency action.

Complainant also contends that the agency discriminated against him on the

bases of race, sex, and/or reprisal when M1 or other officials allegedly

made several disparaging remarks about complainant and reportedly

threatened him personally. See (4) and (5), supra. Thus, complainant

is contending that these remarks constituted harassment based upon his

membership in protected classes. The Commission has repeatedly found that

unless the conduct is very severe, a group of isolated incidents will

not be regarded as creating a hostile work environment. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Department of Health and Human Services, EEOC Request

No. 05940481 (February 16, 1995); James v. Department of Health and Human

Services, EEOC Request No. 05940327 (September 20, 1994); see also Harris

v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). A supervisor's remarks

on several occasions unaccompanied by any concrete action are usually

not sufficient to state a claim of harassment. Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996). We find

that in the instant case, the complaint challenges isolated incidents

which are not severe enough to state a claim of harassment. See, e.g.,

Zhang v. United States Postal Service, EEOC Request No. 05940481 (July 17,

1998) (supervisor yelling at complainant on one occasion is insufficient

to demonstrate that complainant's work environment was altered so as to

state a claim for harassment); Banks v. Department of Health and Human

Services, EEOC Request No. 05940481 (February 16, 1995) (allegations that

on one occasion supervisor threw a file on complainant's desk and berated

her in a loud voice in the presence of other employees, causing her

embarrassment and humiliation, insufficient to state a harassment claim).

Based on the foregoing, we find that the agency's dismissal of

complainant's claims was proper. Therefore, after a careful review of

the record, including complainant's contentions on appeal, the agency's

response, and arguments and evidence not specifically addressed in this

decision we affirm the FAD.

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

September 26, 2002

__________________

Date