Igor Brodetski, Complainant,v.Joseph D. Duffey, Director, United States Information Agency, Agency.

Equal Employment Opportunity CommissionApr 27, 2000
01982362 (E.E.O.C. Apr. 27, 2000)

01982362

04-27-2000

Igor Brodetski, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.


Igor Brodetski v. United States Information Agency

01982362

April 27, 2000

Igor Brodetski, )

Complainant, )

)

v. ) Appeal No. 01982362

) Agency No. OCR-97-40

Joseph D. Duffey, )

Director, )

United States Information Agency, )

Agency. )

____________________________________)

DECISION

On January 29, 1998 , complainant filed a timely appeal with this

Commission from a final agency decision pertaining to 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. <1> The

agency characterized the complaint as alleging that he was subjected

to continuing discrimination on the basis of reprisal for prior EEO

activities and subjected to harassment when:

On June 30, 1997, his rating officer provided him a mid-term

document summarizing his discussion of June 29, 1997, regarding his

work performance for the period May 1, 1996 through April 30, 1997,

which was in violation of time limits for such discussions and which

contained slanderous statements and was inappropriate; and

On July 12, 1997, his supervisor accused him of reading a book instead

of completing an assigned script translation.

The agency dismissed claim (1) as a proposed action and claim (2)

for failure to state a claim. Specifically, the agency determined

that the mid-term document at issue in claim (1) was a proposed action

under discussion between complainant and the Rating Officer, was not

placed in his "performance file," and did not constitute a present

harm to complainant. The agency also determined that for claim (2),

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

of employment.

The record discloses that complainant filed claims (1) and (2) as separate

complaints, which were then consolidated by the agency. In each of his

complaints, and on appeal, complainant asserts that he is a victim of

slander and harassment.

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)(5)) provides,

in part, that the agency shall dismiss a complaint that alleges that

a proposal to take a personnel action, or other preliminary step to

taking a personnel action, is discriminatory. The Commission has stated

however, that a complaint may not be dismissed under this section when the

complainant alleges, as in the present case, that the preliminary step was

taken for the purpose of harassing the individual for a prohibited reason.

In such a case, the agency's action has already affected the employee.

Rodriguez-Soto v. Army, EEOC Request No. 05960646 (October 8, 1998).

A claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). In determining whether a harassment complaint states a

claim, the Commission has repeatedly examined whether a complainant's

harassment claims, when considered together and assumed to be true, were

sufficient to state a hostile or abusive work environment claim. Id.

Additionally, the Commission has repeatedly found that claims of a few

isolated incidents of alleged harassment usually are not sufficient to

state a harassment claim. See Phillips v. Department of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996); see Cobb, supra.

Complainant has only articulated two alleged instances of isolated

harassment as contributing to a hostile work environment. Moreover,

there is no evidence that any action was ever taken against complainant,

and the agency's assertion that the mid-term document was not placed in

complainant's "performance file" has not been challenged by complainant.

The Commission therefore finds that complainant has not demonstrated that

the alleged conduct that he complains of is so severe or pervasive so

as to constitute a hostile work environment. Furthermore, complainant

has not shown that he suffered harm with respect to a term, condition,

or privilege of employment. Therefore, we find that the complaint fails

to state a claim.

Accordingly, the agency's decision dismissing complainant's complaint

is hereby AFFIRMED.

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 (S0400)

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:

April 27, 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:

_______________ __________________________

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.