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.