Paul C. Kelly, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01a01603 (E.E.O.C. May. 19, 2000)

01a01603

05-19-2000

Paul C. Kelly, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Paul C. Kelly, )

Complainant, )

)

v. )

) Appeal No. 01A01603

Rodney E. Slater, ) Agency No. DOT-1-99-1095

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On December 10, 1999, complainant filed a timely appeal with this

Commission from an agency decision dismissing 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.<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).

Complainant, an agency Air Traffic Control Specialist, contacted the EEO

office regarding a claim of discrimination based on race. Specifically,

complainant alleged that he was discriminated against when:

On July 1, 1999, a private pilot called in for a weather briefing,

spoke to complainant's subordinate, and made disparaging remarks about

complainant in particular and African-Americans in general.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, on September 21, 1999, complainant filed a formal complaint.

On November 30, 1999, the agency issued a decision dismissing the

complaint for failure to state a claim. The agency determined that

there was nothing to attribute the conduct of the pilot to the agency.

According to the agency, �the pilot was not an agency employee, was not

on agency property or otherwise connected to the agency.�

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). "To state a claim under our regulations,

an employee must allege and show an injury in fact." Id. (citing Hackett

v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971)). "Specifically, an employee

must allege and show a 'direct, personal deprivation at the hands of the

employer,' that is, a present and unresolved harm or loss affecting a

term, condition or privilege of his/her employment." Id. (citing Hammonds

v. USPS, EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. USPS,

EEOC Request No. 05900367 (June 2, 1990)).

Complainant contends he suffered discrimination when a private pilot

called in and made a remark about complainant and African-Americans to

one of complainant's subordinates. Complainant himself admits that the

comment was made by a private pilot, rather than an agency employee.

Moreover, on appeal, complainant argues that since he is an agency

employee and has no way to address the alleged discriminatory event,

the agency should provide a remedy for its failure to protect him from

discrimination. We agree with the agency that complainant has not shown

a �direct, personal deprivation at the hands of the employer.� Moreover,

we note that 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. USPS, EEOC Request No. 05960227 (June 10,

1996); Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).

Accordingly, the agency's dismissal of 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:

May 19, 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.