01a04693
11-28-2000
Reche M. Kinsey, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Reche M. Kinsey v. Department of Veterans Affairs
01A04693
November 28, 2000
.
Reche M. Kinsey,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04693
Agency No. 2001712
DECISION
Reche M. Kinsey (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 17, 2000 dismissing his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.<1> In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (black) and reprisal
(prior EEO activity under Title VII) when:
on August 12, 1999, his supervisor called him a liar when they were
discussing the fact that a food cart had not been set up for the weekend
cooks;
on September 13, 1999, a dietitian who was involved in attempting to
resolve the above issue asked him if he was prejudiced; and
someone started a rumor that he had spent the weekend in jail and on
January 17, 2000 two employees asked him about the rumor.<2>
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for failure to state a claim, noting that complainant
was not aggrieved by the incidents. The agency noted that no actions
were taken against complainant and that comments unaccompanied by
concrete action were not sufficient to render an individual aggrieved.
The agency also held that the incidents were not severe or pervasive
enough to rise to the level of harassment. The agency went on to find
that the complaint is moot and therefore subject to dismissal pursuant
to 29 C.F.R. � 1614.107(a)(5). The agency determined that no further
relief was available to complainant because the supervisor in question had
already apologized and complainant had been transferred, as he requested.
Finally, the agency noted that the first two incidents were untimely,
as complainant did not raise them with an EEO counselor within the
requisite time period.
On appeal, complainant contends that he is aggrieved because he
suffered mental abuse. He also notes that his supervisor called him a
liar several times in front of witnesses. Complainant reiterates his
request for compensatory damages in the amount of $300,000. Finally,
he argues that he did not have to contact an EEO Counselor within 45
days because the agency assured him that he could file an EEO complaint
if the Alternative Dispute Resolution process did not work out.
In response, the agency notes that complainant's contention that his
supervisor called him a liar several times in front of witnesses
is contrary to complainant's previous story. The agency disputes
that complainant was told that he did not have to contact an EEO
Counselor within the required 45 day time period. The agency states
that complainant did not speak to the EEO Counselor until well past
the 45 day time period and that it is therefore impossible that the
counselor said something that led complainant to decide not to initiate
EEO counseling in a timely manner. Finally, the agency notes that while
it advised complainant that his original complaint, which raised the
first two incidents, would be amended to include the third incident,
the original EEO contact was nonetheless untimely.
ANALYSIS AND FINDINGS
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. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
In the case at hand, it is undisputed that the complaint involves nothing
other than remarks made by several different employees. Complainant
argues that these remarks amount to harassment. 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,
as in the case at hand, 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. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Here, we find that even assuming that the incidents occurred as
alleged by complainant on appeal, they are not sufficiently severe or
pervasive enough to alter the conditions of complainant's employment.
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).
Accordingly, after a careful review of the record, including arguments
and evidence not specifically mentioned in this decision, we AFFIRM the
FAD.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 28, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant asserted that the first two incidents were motivated by his
race and the third incident occurred because he filed an EEO complaint
in regard to the first two claims.
3 Because we find that the complaint does not state a claim, we will
not address the agency's alternative arguments for dismissal. However,
in regard to the agency's argument that complainant did not timely
initiate EEO counseling, for future reference we refer the agency to
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), as revised, November 9, 1999, at 3-7. (If the agency's ADR
program allows aggrieved individuals to go directly into the ADR process
without first meeting with the Counselor, the meeting with the agency's
ADR contact person will serve as the meeting with the Counselor).