Robert Graham, Complainant,v.Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionAug 18, 2000
01986603 (E.E.O.C. Aug. 18, 2000)

01986603

08-18-2000

Robert Graham, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.


Robert Graham v. Department of Justice

01986603

August 18, 2000

Robert Graham, )

Complainant, )

) Appeal No. 01986603

v. ) Agency No. I968001

)

Janet Reno, )

Attorney General, )

Department of Justice )

(Immigration and Naturalization )

Service), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

on the bases of race (African-American) and disability (physical) in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> For the reasons stated herein,

the agency's FAD is affirmed.<2>

According to the record, complainant was an Immigration Records

Technician in a Texas facility of the agency. He applied for a GS-7,

Criminal Investigator Trainee position (the position) in an Oklahoma

sub-office of the agency. The Recommending Official for the position

(the RO), who worked in the Texas facility, recommended five out of the

30 candidates who were referred to him by a supervisory agent in the

Oklahoma sub-office. Complainant was not among the five recommended

candidates. The RO told the Selecting Official for the position

(the SO) that complainant's academic credentials were unrelated to the

position and that, per third parties, complainant had a poor attitude.

The SO interviewed only complainant for the position and selected him.

Shortly after his selection, complainant was informed by several

individuals that the RO made derogatory comments about him in connection

with his selection for the position. Believing he was a victim of

discrimination, complainant sought EEO counseling and, subsequently,

filed a complaint alleging that the RO discriminated against him based

on race (African-American) and disability (physical).

The Commission has repeatedly found that unless the conduct is very

severe, a group of isolated incidents will not be regarded as creating a

hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC

Request No. 05960030 (July 12, 1996). A supervisor's remarks on several

occasions unaccompanied by any concrete action are usually not sufficient

to state a claim of harassment. Backo v. United States Postal Service,

EEOC Request No. 05960227 (June 10, 1996). In the instant case, the

complaint challenged an isolated incident which was not severe enough to

state a claim of harassment. See, e.g., Zhang v. United States Postal

Service, EEOC Request No. 05970085 (July 17, 1998) (supervisor yelling

at complainant on one occasion is insufficient to demonstrate that

complainant's work environment was altered so as to state a claim of

harassment); Banks v. Dep't of Health and Human Services, EEOC Request

No. 05940481 (February 16, 1995) (allegations that on one occasion

supervisor threw a file on complainant's desk and berated her in a loud

voice in the presence of other employees, causing her embarrassment and

humiliation, insufficient to state a harassment claim). Accordingly, the

complainant failed to establish discriminatory harassment by the agency.

Further, to the extent complainant alleged disparate treatment, he did

not suffer an adverse employment action and the RO recommended highly an

African-American female for the position. As such, he failed to establish

a prima facie case of discrimination based on race and, assuming arguendo

that complainant is a person with a disability<3>, he also failed to

establish a prima facie case of disability. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. U.S. Postal Service,

662 F.2d 292 (5th Cir. 1981).

Accordingly, the complainant has failed to prove that the agency harassed

him or discriminated against him based on race or disability. It is the

decision of the Commission to AFFIRM the agency's final decision in this

matter finding no harassment and no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

August 18, 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.

2On appeal, complainant requested a hearing. A hearing is no longer

available in this matter because, in a letter dated September 3, 1997,

the agency informed complainant of his right to a hearing before an EEOC

administrative judge or an immediate FAD without a hearing. In a letter

dated September 19, 1997, complainant requested an immediate FAD.

3Complainant had Ehlers-Danlos Syndrome, which was a connective tissue

disorder that could cause instability in complainant's joints.