O.D. Franks, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01A03037 (E.E.O.C. Jul. 24, 2000)

01A03037

07-24-2000

O.D. Franks, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


O.D. Franks v. Veterans Affairs

01A03037

July 24, 2000

.

O.D. Franks,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03037

Agency No. 200P-1975

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision 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. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 January 6, 2000 complainant contacted the EEO office regarding claims

of discriminatory harassment. Informal efforts to resolve complainant's

concerns were unsuccessful. On February 7, 2000, complaint filed a formal

complaint based on disability and age. The agency framed complainant's

claim as one of harassment, identifying solely the following event:

a) On January 4, 2000, complainant's supervisor informed complainant in

an intimidating and sarcastic tone that complainant was not qualified

for any other position within the Medical Center and that he needed

to �get adjusted� and realize that the position he had is his position

at present. Complainant informed his supervisor that he would no longer

tolerate her �volume, tone, sarcasm, and intimidation.�

On February 22, 2000 the agency issued a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined that

complainant failed to alleged facts establishing that a term, condition,

or privilege of his employment had been affected. The agency found that

complainant had only described an isolated incident which was insufficient

to state a claim of harassment.

On appeal, complainant presents �a few of the many events that occurred�

during his return to the VA Hospital. Complainant contends that: on

July 7, 1999, when he returned from lunch, his supervisor yelled at him

and threatened to withhold fifteen minutes from his pay; on August 23,

1999, his supervisor dismissed an incident where a co-worker screamed

at complainant for not understanding the menus; on October 26, 1999,

dissatisfaction with complainant's work was reported to his supervisor

and she shouted at him in an intimidating manner, referring to him as

�Just like the black downstairs!�; on January 3, 2000, upon arrival

to his new office, complainant's supervisor shouted at complainant and

stated �You are stuck here and that it that!�; and on January 3, 2000,

complainant told his supervisor that her volume, tone and intimidating

demeanor was not acceptable. She replied �That is me and you or no one

else will change me.�

In response, the agency argues that complainant has presented new

allegations on appeal. Further, the agency maintains that although the

incidents raised on appeal occurred prior to complainant's counselor

contact, only the January 3, 2000 incidents were raised with the EEO

Counselor. Therefore, the agency contends that the new allegations

�should be viewed with great skepticism� and its decision should be

affirmed.

The regulation set forth at 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).

Here, complainant has alleged a claim of discriminatory harassment.

The Counselor's Report reflects that �[t]he most recent incident� occurred

on January 4, 2000. Therefore, we determine that complainant's claim of

harassment encompasses additional incidents of shouting and yelling by

his supervisor, as noted by complainant on appeal. The Commission finds,

however, that complainant has nonetheless failed to show how the alleged

incidents resulted in a harm or loss to a term, condition, or privilege

of employment. Further, 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). Moreover, even

when the additional incidents are considered with the issue identified

by the agency in its final decision, we determine that complainant

claim is not sufficiently severe or pervasive 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 dismissing 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:

July 24, 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.