Irving T. White, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 17, 1999
01992236_r (E.E.O.C. Nov. 17, 1999)

01992236_r

11-17-1999

Irving T. White, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Irving T. White, )

Complainant, )

)

v. ) Appeal No. 01992236

) Agency No. 98-62793-003

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

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

the agency concerning 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> Complainant received the final agency

decision on December 19, 1998. The appeal was postmarked January 15,

1999. Accordingly, the appeal is timely (see 64 Fed Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented is whether the agency properly dismissed the instant

complaint on the grounds of failure to state a claim.

BACKGROUND

Complainant initiated contact with an EEO Counselor on June 29, 1998.

On August 19, 1998, complainant filed a formal EEO complaint wherein he

claimed that he was subjected to discrimination on the basis of his race

(black) when an activity supervisor stated to another activity supervisor

within the hearing of a black employee �Do you know what those monkeys

in the Tech Library did?� Complainant claimed that this was a racially

motivated statement directed at him and his coworkers. Complainant also

claimed that the agency failed to take appropriate disciplinary action

against the supervisor. As relief, complainant requested in part that

he be awarded compensatory damages.

In its final decision, the agency dismissed the complaint on the grounds

of failure to state a claim. The agency determined that complainant

did not identify specifically how the supervisor's comment or the

activity's action adversely affected a term, condition, or privilege of

his employment. The agency further determined that complainant failed

to identify any concrete action taken against him. The agency therefore

also denied complainant's request for compensatory damages.

On appeal, complainant argues that the racial slur had a direct adverse

effect on his self-esteem and character in the workplace. Complainant

claims that respect for him among white coworkers has been damaged.

Complainant argues that he has been denied the privilege of working in

an environment free of racial harassment.

In response, the agency asserts that complainant has not identified

what concrete action was taken against him with regard to a statement

made by a supervisor not in his chain of command. The agency states

that complainant did not indicate what other incidents have occurred to

consider this one statement an environment of racial harassment.

ANALYSIS AND FINDINGS

Volume 64 of the Federal Register, 37,644, 37,656 (1999) (to be codified

and hereinafter cited as 29 C.F.R. �1614.107(a)(1)) provides that prior

to a request for a hearing in a case, the agency shall dismiss an entire

complaint which fails to state a claim under to 29 C.F.R. �1614.103

or �1614.106(a). For employees and applicants for employment,

EEOC Regulation 29 C.F.R. �1614.103 provides that individual and

class complaints of employment discrimination prohibited by Title VII

(discrimination on the bases of race, color, religion, sex and national

origin), the ADEA (discrimination on the basis of age when the aggrieved

individual is at least 40 years of age) and the Rehabilitation Act

(discrimination on the basis of disability) shall be processed in

accordance with Part 29 C.F.R. �1614 of the EEOC Regulations.

The only proper inquiry, therefore, in determining whether a claim is

within the purview of the EEO process is whether the complainant is an

aggrieved employee and whether s/he has claimed employment discrimination

covered by the EEO statutes. 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 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment" is created when "a reasonable person would find

[it] hostile or abusive" and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition, or privilege of employment,

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.

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).

As a general rule, derogatory remarks, standing alone, do not sufficiently

harm a person for the purposes of standing. The Commission requires

that a remark or comment be accompanied by a concrete action in order

for a complainant to suffer sufficient injury to be aggrieved. Cobb,

supra.. Of course, such a holding must also be viewed in light of the

large body of law surrounding hostile environment claims. The distinction

being that an isolated remark may not cause sufficient injury to aggrieve

an employee, but when the remarks become severe and pervasive they can

create a hostile environment.

There remains no real rule that can be extracted from the Commission's

decisions involving derogatory remarks that provides clear guidance on the

difference between isolated comments, that the Commission regards as not

injuring an employee, and comments sufficient to aggrieve a complainant.

Though one factor the Commission will look at in such cases is background

evidence that relates to the overall environment.

The Commission has also held that, under certain circumstances, a

limited number of highly offensive slurs or comments about a federal

employee's race or national origin may in fact support a finding of

discrimination under Title VII. Brooks v. Department of the Navy, EEOC

Request No. 05950484 (June 25, 1996). See also Yabuki v. Department of

the Army, EEOC Request No. 05920778 (June 4, 1993) (where a supervisor

stood at the water cooler, pointed his finger at complainant's face,

and declared disparagingly in front of other employees, �it is because

of [complainant]� that the Japanese people will soon own the country);

Gamboa v. United States Postal Service, EEOC Request No. 05890633

(August 31, 1989) (the Commission held that a single incident involving

two humiliating remarks by appellant's supervisor, taking place in a

public forum, stated a claim for disability discrimination).

Complainant claimed that he was subjected to racial harassment when the

supervisor stated �Do you know what those monkeys in the Tech Library

did?� We find that this statement, by itself, lacked sufficient

pervasiveness or severity to rise to the level of harassment. The

statement was an isolated remark that did not adversely affect complainant

with regard to a term, condition, or privilege of his employment. As for

complainant's request for compensatory damages, we note that where

a claim fails to render a complainant aggrieved, it is not converted

into a processable claim merely because the complainant has requested

compensatory damages. Laratonda v. United States Postal Service, EEOC

Appeal No. 01933846 (March 11, 1994). In the absence of a showing that

a complainant has suffered personal loss or harm with respect to a term,

condition, or privilege of employment, a claim for compensatory damages

is not processable. See also, Gjersvold v. Department of the Treasury,

EEOC Appeal No. 01941041 (April 7, 1994). Accordingly, the agency's

decision to dismiss this complaint for failure to state a claim was

proper and is AFFIRMED.

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).

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. 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 (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:

November 17, 1999

_________________ _____________________________

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 and the agency on:

______________________

______________________

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.