01976702
02-11-1999
Marvin K. Roney, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Marvin K. Roney v. Department of Transportation
01976702
February 11, 1999
Marvin K. Roney, )
Appellant, )
)
v. ) Appeal No. 01976702
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 22, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in his complaint that the agency discriminated
against him based on his race when: (1) on September 6, 1996, the
Operations Supervisor denied the appellant's request to move Coworker A
when he was harassing the appellant and his wife; and (2) on June 13,
1997, the Operations Supervisor ordered the appellant's wife to move
to a different work position. The agency dismissed allegation 1 on
the ground that the appellant's EEO counselor's contact on July 2, 1997
was not timely concerning the September 6, 1996 incident. In addition,
the agency dismissed both allegations for stating the same claim that
was pending before the agency in complaint no. 4-97-028, filed by the
appellant's wife. The agency also noted that the appellant had raised
related incidents in a prior complaint no. 4-97-047.
On appeal, the appellant contends that his wife has not filed a
complaint on the June 13, 1997 incident. The appellant also questions
how his EEO counselor contact can be untimely if allegation 1 stated the
same claim that was raised in a prior complaint. The appellant further
represents that he did not have evidence at the time of the September 1996
incident that the Supervisor would treat a white employee differently.
The appellant represents that he did not become aware that he had been
discriminated against in September 1996 until the June 13, 1997 incident.
In response, the agency contends that the appellant suspected
discrimination on September 6, 1996, but waited until he had evidence of
disparate treatment to contact a counselor. The agency also contends
that if the appellant is alleging that he was subjected to a hostile
work environment, that was the subject of a prior complaint.
After a review of the record, including the two previously filed
complaints cited in the final agency decision, the Commission finds
that the appellant's complaint fails to state a claim of employment
discrimination against the appellant. Allegation 2 concerns an incident
where the appellant's wife was ordered to work in a different position in
the control tower for one shift. The incident did not allegedly affect
the appellant's terms, conditions, or privileges of employment in any
way.
Allegation 1 concerns anti-union remarks allegedly made by Coworker A
in the appellant's presence on one occasion. The alleged remarks were
critical of the union at a time when the appellant's wife was president
of the local union. The Commission has held that mere remarks, without
more, do no state a claim of employment discrimination. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996) (allegations that supervisor had "verbally attacked" the
complainant on one occasion, attempted to charge him with AWOL, and
disagreed with the time the complainant entered into a sign-in log,
were insufficient to state a harassment claim); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's
remarks on several occasions, unaccompanied by any concrete action,
were not sufficient to state a claim); Miller v. United States Postal
Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment
was not sufficient to state a hostile work environment claim); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February 16,
1995) (allegations that on one occasion a supervisor threw a file on
the complainant's desk and berated her in a loud voice in the presence
of other employees, causing her embarrassment and humiliation, were
insufficient to state a harassment claim); and Henry v. United States
Postal Service, EEOC Request No. 05940695 (February 9, 1995) (allegation,
that on one occasion a supervisor questioned the complainant about his
requested schedule revisions, did not state a claim). To the extend
that the appellant believed that by having to listen to such remarks he
was being subjected to a hostile work environment, the appellant should
have cited the September 6, 1996, in his prior harassment complaint.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's August 11, 1997 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
February 11, 1999
Date Ronnie Blumenthal, Director
Office of Federal Operations