Helen Kobell, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01981950 (E.E.O.C. Sep. 23, 1999)

01981950

09-23-1999

Helen Kobell, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Helen Kobell v. Department of the Treasury

01981950

September 23, 1999

Helen Kobell, )

Appellant, )

)

v. ) Appeal No. 01981950

) Agency No. TD 98-3005

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency 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 the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency

decision was received by appellant on December 19, 1997. The appeal

was postmarked December 31, 1997. Accordingly, the appeal is timely

(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint.

BACKGROUND

Appellant contacted an EEO counselor on June 24, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that

she was discriminated against when:

(1) on or about June 24, 1997 she was placed below three of her

co-workers on the agency's Mock Reduction in Force (RIF) Roster based

on her minimally successful annual performance appraisal covering the

period April 1995 through March 3, 1996 which appellant alleges was

discriminatory; and

(2) on or about August 21, 1997, her manager threatened and harassed her

about receiving a coffee pot through the office mail. Informal efforts to

resolve appellant's concerns were unsuccessful. Accordingly, on October

7, 1997, appellant filed a formal complaint alleging that she was the

victim of unlawful employment discrimination on the bases of religion

(Jewish), sex (female), age (3-11-43), and reprisal (prior EEO contact).

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on October 7, 1997, appellant filed a formal complaint

alleging that she was the victim of unlawful employment discrimination on

the bases of religion (Jewish), sex (female), age (3-11-43), and reprisal

(prior EEO contact).

On December 4, 1997, the agency issued a final decision (FAD) dismissing

allegation (1) of appellant's complaint as moot and allegation (2) for

failure to state a claim. Specifically, with respect to allegation (1)

the agency determined that the cancellation of the RIF eradicated any

discriminatory effects which may have arisen as a result of appellant's

name being placed on the RIF roster. Concerning allegation (2), the

agency determined that appellant failed to demonstrate that she had

suffered any direct harm or loss with respect to a term, condition,

or privilege of employment as a result of the alleged conduct by

appellant's manager. The agency also identified a third allegation

concerning appellant's performance rating. The agency determined that

appellant's minimally successful performance rating was addressed in

complaint No. TD 97-3018 filed by appellant on October 24, 1996 and

appealed to this Commission on September 28, 1997. The instant FAD

identified a prior agency decision dated September 2, 1997, in which

the agency dismissed appellant's performance rating allegation on the

grounds that it stated the same claim pending before the Commission.

See 29 C.F.R. �1614.107(a).

ANALYSIS AND FINDINGS

The record indicates that the agency identified a third complaint

allegation regarding appellant's performance rating. Upon review, we

determine that while appellant does allege that the agency's decision to

place her below three of her co-workers on the agency's RIF roster was

based on her performance rating, she is not challenging her minimally

successful rating in the complaint which gave rise to this appeal.

In that regard, we will not address that portion of the agency's decision

dismissing appellant's performance appraisal allegation.

Although the agency's December 4, 1997 FAD indicated that it was

dismissing allegation (1) the grounds that the matter was moot, we find

that appellant's RIF allegation is more appropriately dismissed because it

fails to state a claim. 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).

Here, the record reveals that the agency proposed to have appellant's

position abolished in a RIF action, but that this event actually never

occurred. In fact, the record shows that the proposed abolishment was

subsequently canceled and appellant maintained her job position, grade

level and salary There is no argument or evidence to the contrary.

Appellant was not harmed with respect to a term, condition, or privilege

of her employment by the agency's proposed RIF which was subsequently

canceled.

In allegation (2) appellant alleges that on August 21, 1997 her manager

harassed and threatened her about receiving a coffee pot through the mail.

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, see Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission

has repeatedly found that allegations of a few isolated incidents of

alleged harassment usually are not sufficient to state a harassment claim.

For example, the Commission has held that allegations that a supervisor

had "verbally attacked" the complainant on one occasion, attempted

to charge him with AWOL, and disagreed with the time the complainant

entered into a sign-in-log, were insufficient to state a harassment claim.

See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030

(July 12, 1996).

Similarly, the Commission has held that allegations that on one occasion

a supervisor threw a file on the complainant's desk and berated her in a

loud voice in the presence of other employees causing her embarrassment

and humiliation were insufficient to state a harassment claim. See Banks

v. Health and Human Services, EEOC Request No. 05940481 (February

16, 1995). Based on EEOC Regulations and previous decisions of this

Commission, we find that the incident described by appellant in allegation

(2) fails to state a claim. It is also the opinion of the Commission

that allegations (1) and (2) together do not rise to the level needed to

state a claim of harassment, and appellant has not alleged a personal

loss or harm related to a term, condition, or privilege of employment.

The agency's decision to dismiss appellant's complaint was proper.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint is

hereby AFFIRMED for the reasons set forth herein.

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:

September 23, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations