01A40083_r
02-03-2005
Patricia A. Irving, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Patricia A. Irving v. Department of the Navy
01A40083
February 3, 2005
.
Patricia A. Irving,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40083
Agency No. 00-68094-003
Hearing No. 340-2000-03813X
DECISION
Complainant appeals to the Commission from the agency's November 3, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (African-American) and color (black) when, on
approximately August 14, 2002, he was told by a coworker that another
coworker had referred to him using a racial slur (�dumb nigger�).
An EEOC Administrative Judge (AJ), without holding a hearing, issued a
decision on September 16, 2003, finding that complainant had not been
discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its actions,
which complainant failed to rebut. The AJ found that, immediately
after agency management officials learned that coworker A allegedly
made a racial slur about complainant to a third party, the matter was
immediately investigated and prompt remedial action was taken including,
suspension and relocation of coworker A. The AJ reported that the
comment was isolated and only relayed to complainant via a third party.
The AJ stated that, though coworker A denied that he made the comment,
discipline was still imposed by the agency. The AJ indicated that
complainant failed to provide any evidence to show that the agency's
actions were not prompt and effective. The agency, on November 3, 2003,
issued a decision fully implementing the AJ's decision. Complainant now
appeals from that decision.
The Commission finds that, although the AJ found no discrimination,
we find that the claim is more properly dismissed for failure to
state a claim. The regulation set forth at 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).
Generally, a remark or comment does not rise to the level of a cognizable
claim. Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995). However, the Commission has held that, under
certain circumstances, a limited number of highly offensive slurs or
comments about a federal employee's race or national origin may in
fact state a claim or support a finding of discrimination under Title
VII. The Commission has previously noted that the use of the racial
epithet "nigger" is a "highly charged epithet" which "dredge[s] up the
entire history of racial discrimination in this country." See Brooks
v. Department of the Navy, EEOC Request No. 05950484 (1996); Yabuki
v. Department of the Army, EEOC Request No. 05920778 (June 4, 1993).
Nonetheless, upon consideration of the record as a whole, the Commission
concludes that the complaint fails to state a claim. Complainant was told
by someone else that a coworker had made the alleged slur. In addition,
there was only the one identified incident of the alleged racial slur,
following which the agency appears to have taken prompt action to insure
that further such remarks did not recur. Accordingly, the agency's
final decision is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2005
__________________
Date