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.