Eugene Cooper, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01a01625 (E.E.O.C. Aug. 22, 2000)

01a01625

08-22-2000

Eugene Cooper, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Eugene Cooper v. Department of Defense

01A01625

August 22, 2000

.

Eugene Cooper,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 01A01625

Agency No. 99DCW12B053

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated November 5, 1999, dismissing 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. and Section 501 of

the Rehabilitation Act of 1973, 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).

The record reveals that on or about September 6, 1999, complainant filed

a formal complaint of discrimination claiming that he was subjected to

a hostile work environment on the bases of his race (African-American),

disability (physical) and in reprisal for prior EEO activity when:

On July 3, 1999, a co-worker called complainant a �lying sack of shit�;

Complainant was subjected to a spot check in front of his co-workers;

Management directly asked complainant questions about his EEO cases

despite the fact that he is being represented; and

One hour of leave was taken from complainant without him requesting it.

On November 5, 1999, the agency issued a final decision dismissing the

complaint for failure to state a claim. The agency found that the above

actions did not constitute adverse employment actions.

With respect to claims 1, 2 and 3, the Commission finds that the agency

dismissal for failure to state a claim was proper. 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

claims 1 through 3. Therefore, standing alone, claims 1 through 3 fail

to state a claim. Additionally, even when viewed within the context of a

claim of harassment and in a light most favorable to complainant, claims

1 through 3 are too isolated and insufficiently severe to establish

a hostile work environment. Consequently, claims 1 through 3 were

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)), for

failure to state a claim.

With respect to claim 4, the Commission finds that this allegation

states a claim. The regulation set forth at 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter cited 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 21, 1994). In this case, claim

4 states that complainant has suffered a loss with respect to a term,

condition, or privilege of his employment for which there is a remedy.

Despite the fact that this claim states a claim, the Commission must

remand this claim back to the agency to clarify the date on which this

incident took place and complainant became aware of it.

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

dismissal of claim 4 and REMANDS claim 4 to the agency for a supplemental

investigation in accordance with this decision and applicable regulations.

The Commission AFFIRMS the dismissal of the remainder of the complaint.

ORDER

The agency is ORDERED to complete a supplemental investigation and

either issue a new decision with appeal rights or continue processing

of claim 4 within 30 calendar days from the date this decision becomes

final. The agency must determine when one hour of leave was taken

from complainant, when he became aware that the hour was taken, and

when complainant first suspected that this action was discriminatory.

Thereafter, the agency shall either continue processing claim 4 or issue

a new decision with appeal rights to complainant.

A copy of the notice of processing or new decision with appeal rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 22, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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.