Sylvia A. Samuels, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 14, 2000
01a05386 (E.E.O.C. Dec. 14, 2000)

01a05386

12-14-2000

Sylvia A. Samuels, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Sylvia A. Samuels v. Department of Veterans Affairs

01A05386

December 14, 2000

.

Sylvia A. Samuels,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05386

Agency No. 200P2408

DECISION

Sylvia A. Samuels (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated July 21, 2000 dismissing

her 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 her complaint, complainant alleged that

she was subjected to harassment by a co-worker (HR) on the basis of race

(Black). In support of her claim of harassment, complainant described

the following incidents:

On December 15, 1999, she left her dinner in the microwave oven located

in the employee break room while she went to get a soda. Upon returning,

she heard one co-worker say to HR �[t]hat would be nice if you did that,�

to which HR replied �Ya, right, huh?�;

On January 10, 2000, HR slammed his locker extremely hard by her head,

pushed a chair against the wall and, as he was leaving the break room,

kicked a trash can;

On January 14, 2000, HR picked up a biweekly report and threw it toward

her as he passed her desk;

On May 4, 2000, as she passed the break room door, HR laughed loudly

and repeated the words �big mama, big mama.� HR continued to say these

words when he went out to the main lobby;

On May 5, 2000, when complainant turned from her locker, HR was on the

break room couch with a pillow case over his nose. On several other

occasions, he pinched his nose as he walked past her;

On May 29, 2000, several days after complainant reported HR's

inappropriate behavior to a nurse manager, HR stated in complainant's

presence, �Now I have to bow down to the master;�

On June 7, 2000, HR's wife called complainant at work and asked her

what was going on between complainant and HR, stating that HR gave her

a brief summary, but she wanted to hear complainant's side.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim. Specifically, the agency found that

complainant failed to establish that she was aggrieved in that she did

not suffer a present harm or loss with respect to a term, condition

or privilege of employment. The agency also held that HR's actions,

although inappropriate, did not rise to the level of harassment, as they

were not sufficiently severe or pervasive. The agency then found that

complainant did not establish that the comments or gestures made by HR

were motivated by her race.

Complainant raises no contentions on appeal. The agency reiterates

arguments set forth in the FAD. The agency also notes that complainant's

own written statement belies her allegation that HR's actions were

racially motivated. The agency cites a written statement submitted by

complainant to the EEO Counselor in which complainant attributed HR's

behavior to his belief that she reported him for engaging in inappropriate

conduct with a female co-worker.

After a careful review of the record, we find that the agency correctly

determined that complainant failed to state a claim of harassment.

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.

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). Moreover, it is well-settled that,

unless the conduct is very severe, 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). Here, complainant described isolated comments and

physical gestures made by a co-worker, which she believes he made in

reference to her. After a careful review of the record, we find that

although HR's actions as described by complainant were inappropriate,

even when taken together they are not sufficiently severe or pervasive

to state a claim of harassment.

Accordingly, we find that the agency properly dismissed the complaint

as failing to state a claim and hereby AFFIRM the FAD.

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

December 14, 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.