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.