Phillip J. Lavullis, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 22, 1999
01991978 (E.E.O.C. Oct. 22, 1999)

01991978

10-22-1999

Phillip J. Lavullis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Phillip J. Lavullis v. Department of the Navy

01991978

October 22, 1999

Phillip J. Lavullis, )

Appellant, )

)

v. ) Appeal No. 01991978

) Agency No. 99-65888-004

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Based on a review of the record, we find that the agency properly

dismissed one allegation in appellant's complaint, pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.

Appellant alleged that he was subjected to discrimination in reprisal

for prior EEO activity when:

From January 1998, through June 1998, appellant was denied the opportunity

to work equitable overtime;

In June 1998, appellant became aware that he was not selected for the

WL-3806-10, Sheet Metal Mechanic Leader position vacancy;

In July 1998, appellant's supervisor removed appellant from the E506

aircraft which caused appellant to lose overtime hours;

On August 17, 1998, another supervisor (S2) monitored appellant's work

and time.

Appellant further alleged that the foregoing incidents constituted

harassment which created a hostile work environment.

On December 16, 1998, the agency issued a final decision accepting

allegations (a) through (c) and dismissing allegation (d) pursuant to

29 C.F.R. �1614.107(a), for failure to state a claim. Specifically, the

agency determined that because appellant suffered no tangible harm as a

result of S2's actions, he was not aggrieved under the EEOC regulations.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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).

In the present case, we concur with the agency's determination that,

standing alone, allegation (d) fails to state a claim. Appellant failed

to show that he suffered harm to the terms, conditions or privileges of

his employment as a result of S2's actions.

However, 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. Where a complaint does not challenge

an agency action or inaction regarding a specific term, condition or

privilege of employment, a claim of harassment is actionable only if,

allegedly, the harassment to which the complainant has been subjected

was sufficiently severe or pervasive to alter the conditions of the

complainant's employment.

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).

However, it is well-settled that, unless the conduct is very severe,

a single incident or a group of isolated incidents will not be regarded

as creating a discriminatory work environment. See James v. Department

of Health and Human Services, EEOC Request No. 05940327 (September 20,

1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).

In the instant complaint, we find that appellant failed to show that

he suffered harm with respect to the terms, conditions or privileges of

his employment as a result of S2's actions. Therefore, standing alone,

allegation (d) fails to state a claim. Additionally, even when viewed

within the context of allegations (a) through (c) and in a light most

favorable to appellant, allegation (d) is too isolated and insufficiently

severe to establish a hostile work environment. Consequently, allegation

(d) was properly dismissed pursuant to 29 C.F.R. �1614.107(a), for

failure to state a claim.

Accordingly, the agency's final decision 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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 22, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations