01992994
03-07-2000
Glenda K. Mathis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Glenda K. Mathis, )
Complainant, )
)
v. ) Appeal No. 01992994
) Agency No. 97-0985
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
On February 25, 1999, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated January 25, 1999,
pertaining to 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.<1> In her complaint, the complainant alleged
that she was subjected to discrimination on the bases of race (black)
and reprisal when on January 22, 1997, her supervisor made harassing
statements during a meeting with all of his first line supervisors.
The complainant alleged that in this meeting the supervisor stated
he was disappointed in all of them. The supervisor also stated that
they were the worst supervisors he had ever seen because they did not
cooperate or help each other. When the complainant asked for specifics,
allegedly the supervisor yelled at her and told her not to interrupt him.
When the complainant asked him not to yell at her, he allegedly responded
that he could do whatever he wanted to. After the complainant apologized
for interrupting him, the supervisor allegedly continued to yell and
said �[y]ou can go to the union or EEO, but whatever I say goes.�
On October 28, 1997, the agency issued a FAD dismissing the complainant's
complaint because it had made an offer of full relief to the complainant,
which she had refused. On appeal, this Commission remanded the complaint
to the agency because the offer of full relief contained a confidentiality
clause which invalidated the offer. See Mathis v. Department of Veterans
Affairs, EEOC Appeal No. 01981108 (December 8, 1998).
Subsequently, the agency dismissed the complaint pursuant to
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency stated that the isolated verbal comments
without concrete action did not affect a term, condition or privilege
of employment and that one incident was not sufficient to state a claim
of harassment.
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. 64 Fed. Reg. 37,644,
37655-56, (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.103 and 29 C.F.R. � 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). Moreover,
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).
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. U.S. Postal Service, EEOC Request No. 05960227 (June
10, 1996). However, under certain circumstances, the Commission has found
that a limited number of racial remarks, including one egregious incident
will be sufficient to state a claim. See Hawkins v. U.S. Postal Service,
EEOC Request No. 05980708 (August 24, 1999).
In the instant case, after a careful review of the record, we find the
agency's dismissal of the complainant's complaint proper in that even if
the one alleged incident did take place, the supervisor's remarks do not
rise to a level sufficient to state a claim of harassment. Accordingly,
we AFFIRM the agency's dismissal of the complainant's complaint pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 7, 2000
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On 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.