01993672
04-28-2000
Larry R. James, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Larry R. James, )
Complainant, )
)
v. ) Appeal No. 01993672
) Agency No. DON 98-55304-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On March 29, 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).
On August 6, 1998, complainant contacted the EEO office regarding a
claim of harassment based on reprisal.<2> Informal efforts to resolve
his concerns were unsuccessful. Accordingly, on September 16, 1998,
complainant filed a formal complaint.
The agency framed the complaint as follows:
1) On February 6, 1998, he was harassed when an agency Director confronted
him about violating a barment order when he came on base to engage
in EEO activity;
2) On June 15, 1998, he was harassed when a former employee informed him
that his former supervisor told staff that he was dangerous and
carried a gun; and,
3) On May 18, 1998, he was harassed by an EEO agency official when
she informed an agency investigator about a barment order against
complainant.
The agency issued a FAD dismissing the complaint for failure to state
a claim. The agency also dismissed claims 1 and 3 for untimely EEO
Counselor contact.
On appeal, complainant submits a lengthy statement regarding the
history of his EEO complaints against the agency, contending that the
agency has deliberately and substantially mishandled the processing of
these complaints. In response, the agency requests that we affirm its
FAD, and also asks that the instant matter be dismissed alleging that
complainant has abused the EEO process.
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 determines that the matters addressed in the instant
complaint do not render complainant aggrieved regarding a term condition,
or privilege of employment. The Commission notes, moreover, that
complainant claims that he was harassed as a result of the agency's
purported actions. A claim of harassment is actionable only if the
harassment to which the complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. See 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 allegations, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. Id. Moreover, the Commission has repeatedly found that
claims of a few isolated incidents of alleged harassment are usually not
sufficient to state a harassment claim. See Phillips v. Department of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); See Cobb,
supra.
Here, we find that complainant's claims do not rise to the level of
actionable harassment. Accordingly, the agency's decision dismissing
complainant's complaint is hereby AFFIRMED for the reasons set forth
herein.<3>
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 28, 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 Assistant1On 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.
2 The record reflects that complainant was terminated from agency
employment in August 1997.
3Consequently, we will not address the agency's alternative grounds for
dismissal of claims 1 and 3. Moreover, in light of our dismissal of the
instant complaint for the reason stated herein, we find it unnecessary at
this time to address the agency arguments on appeal regarding purported
abuse of process.