Glenda K. Mathis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01992994 (E.E.O.C. Mar. 7, 2000)

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.