01a01656
05-11-2000
James A. Williams, )
Complainant, )
)
v. )
) Appeal No. 01A01656
Togo D. West, Jr., ) Agency No. 2003-651
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On December 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) 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
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming he was subjected to
discriminatory harassment. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint on the bases of race and reprisal. The agency framed the
incident of harassment as follows:
On September 29, 1999, the EEO Manager verbally attacked complainant.
As a result, complainant resigned his collateral duty position as
Special Emphasis Program Manager. Complainant believes that because
he had input concerning the EEO Manager's salary adjustment in 1996,
the Manager has held it against him.
On November 30, 1999, the agency issued a FAD dismissing the complaint
for failure to state a claim. Specifically, the agency concluded that
alleged incident involved isolated verbal comments without any concrete
action, which did not rise to the level of a hostile work environment.
Moreover, the agency determined that the alleged event did not constitute
constructive discharge. The agency also noted that the complaint
indicated that complainant was discriminated against on the basis of
reprisal for �administrative retaliation,� which did not identify a
claim of reprisal covered under the EEO statutes.
On appeal, complainant contends that the ORM in Houston failed to
thoroughly address his formal complaint because he filed it against
the EEO Manager. According to complainant, he was never asked why he
considered the incident to be a hostile work environment. Moreover,
complainant argues that the EEO Manager's actions could have an adverse
impact on his career. Complainant argues, for example, that the EEO
Manager's actions could encourage employees to file EEO complaints if
complainant does not upgrade them.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint 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, .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).
A review of the record reveals that complainant was the Special Emphasis
Program Manager for the Upward Mobility Program; that on September 20,
1999, complainant called the EEO Manager to advise him of training plans;
that the EEO Manager responded that he wanted an e-mail; and that on
September 27, 1999, complainant sent the requested e-mail. The record
further reflects that the next day, the EEO Manager sent a reply
asking for a complete package of the training so he could �technically
scrutinize� it; and that complainant viewed this response as an attack.
On September 29, 1999, the EEO Manager came to complainant's office to
ask if complainant had read his response. According to complainant,
the EEO Manager said he had �gone from a GS-2 to a GS-13 in a White
man's environment� and was �not going to take any s� from anyone.�
Consequently, complainant argues, he resigned from the Special Emphasis
Program Manager position.
We agree with the agency that the alleged incident fails to state a claim.
Complainant has not shown how the EEO Manager's remark resulted in a
personal harm or loss regarding a term, condition, or privilege of his
employment. On appeal, complainant argues that the EEO Manager could
encourage others to file complaints against him. However, we find this to
be too speculative. Complainant is not rendered an �aggrieved� employee
by the Manager's statement. Moreover, we find that the complainant has
not alleged facts which are sufficiently severe and pervasive to state
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of the complaint for failure to
state a claim was proper and 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:
May 11, 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.