Johnnie M. Wilson, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01996025 (E.E.O.C. Feb. 10, 2000)

01996025

02-10-2000

Johnnie M. Wilson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Johnnie M. Wilson, )

Complainant, )

)

v. )

) Appeal No. 01996025

Togo D. West, Jr., ) Agency No. 99-0505

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On July 24, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dated June 30, 1999, dismissing her

complaint for failure to state a claim.<1> The Commission accepts the

appeal in accordance with EEOC Order No. 960, as amended.

Complainant contacted the EEO office regarding claims 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.

Specifically, complainant claimed she was harassed when on January 7,1999

she went to the Police and Security Office to see whether they would give

her car a �jump�. Complainant stated that when she asked Officer A, he

told her they did not give �jumps�. Complainant further stated that she

left to call her husband, and then returned to the office. Complainant

claimed that at that point, Sgt. B, the Night Supervisor, was present and

told complainant that they could �jump� her car. Complainant claimed that

Officer A thereafter called her a �Smart Ass� and �F------ Smart Ass.�

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, on March 11, 1999, complainant filed a formal complaint

based on race (African-American) and sex (female).

The agency issued a FAD, dismissing her complaint for failure to state

a claim. The FAD noted that complainant listed �Other (Discrimination,

Race & Female - Unprofessional Behavior on January 7, 1999)�, and

concluded that complainant was referring to the incident with the VA

Police Department described in the Counselor's Report. According to the

FAD, complainant failed to show how the alleged incident caused her to

suffer a harm or loss with respect to a term, condition, or privilege

of her employment. The agency also indicated that complainant's claim

of isolated verbal comments, without any concrete action, did not create

a hostile environment.

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 22,

1994).

The Commission finds that the agency properly dismissed complainant's

complaint for failure to state a claim. Complainant contends that she

was discriminated against when the VA Officer called her a �Smart Ass�

and a �F------ Smart Ass.� However, 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. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No. 05940695 (February 9, 1995).

Therefore, the alleged incident did not render complainant an �aggrieved�

employee. We also find that the complaint is not sufficient to state

a claim of discriminatory harassment. See Cobb v. Department of the

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

agency's decision to dismiss the complaint 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).

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:

February 10, 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 Equal Employment Assistant

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.