01992400
10-21-1999
Orlander Bell, Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Orlander Bell, Jr. v. Department of Defense
01992400
October 21, 1999
Orlander Bell, Jr., )
Appellant, )
)
v. ) Appeal No. 01992400
) Agency No. 98REF078
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. Appellant received the final agency decision
on January 4, 1999. The appeal was postmarked February 3, 1999.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that appellant alleged that a preliminary step
to taking a personnel action is discriminatory.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on June 15, 1998. On August 25, 1998, appellant filed a formal EEO
complaint wherein he alleged that he had been discriminated against on
the bases of his sex (male), race (African-American), and color (black)
when a Sergeant issued him a memorandum dated June 4, 1998, informing
him that if he did not remove the corn rows from his hair by June 7,
1998, then the Sergeant would propose disciplinary action against him.
Appellant alleged that this action constituted harassment. Appellant
removed the corn rows from his hair by June 7, 1998, and neither a
proposed disciplinary action nor actual disciplinary action was issued
to him.
In its final decision, the agency dismissed appellant's complaint on the
grounds that it alleged that a preliminary step to taking a personnel
action was discriminatory. The agency determined that appellant was not
aggrieved as the proposal to take an action did not cause sufficient
injury. The agency noted that no disciplinary action was implemented
against appellant. Thereafter, appellant filed the instant appeal.
In response, the agency asserts that the Sergeant neither proposed nor
took disciplinary action against appellant. The agency maintains that
appellant was not harmed by the memorandum. The agency states that the
memorandum was merely a preliminary step to taking a personnel action.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) requires an agency to dismiss a
complaint or a portion of a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. The Commission has held that proposed
actions do not create a direct and personal deprivation which would
make the appellant an "aggrieved" employee within the meaning of EEOC
Regulations. See Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991); Lewis v. Department of the Interior,
EEOC Request 05900095 (February 6, 1990). If however, the complainant
alleges that the preliminary step was taken for the purpose of harassing
the complainant for a prohibited reason, the agency may not dismiss the
allegation as preliminary because, allegedly, the matter already has
adversely affected the complainant. See Section-by-Section Analysis,
57 Fed. Reg. 12643 (1992); Henry v. United States Postal Service, EEOC
Request No. 05950229 (November 22, 1995); EEOC Management Directive 110
(MD-110) (October 22, 1992), at 4-7, note 2.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Upon review, we find that the agency's dismissal of the complaint on the
grounds that it alleged that a preliminary step to taking a personnel
action is discriminatory was improper. Appellant alleged that the
memorandum issued to him by the Sergeant constituted harassment. However,
harassment is actionable only if sufficiently severe or pervasive to
create a hostile work environment, thereby altering the terms, conditions,
or privileges of the complainant's employment. Harris, supra at 21.
Unless the conduct is very severe, a single incident or a group of
isolated incidents will not be sufficient to state a claim of hostile
work environment harassment. Cobb, supra; James v. Department of Health
and Human Services, EEOC Request No. 05940327 (September 20, 1994).
Appellant's receipt of the June 4, 1998 memorandum does not reflect
the degree of severity or pervasiveness necessary to state a claim for
hostile work environment harassment. Therefore, we find that appellant's
complaint fails to state a claim. Accordingly, the agency's decision
to dismiss appellant's complaint is AFFIRMED for the reasons set forth
herein.
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:
October 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations