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.