01A34782_r
12-10-2003
Wendell Scott v. Department of Justice
01A34782
December 10, 2003
.
Wendell Scott,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A34782
Agency No. P-2003-0190
DECISION
On May 2, 2003, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his sex
(male), race (Black), and national origin (Negro) when on March 12, 2003,
the Human Resource Manager called him �Bubba� and said �bring it on�.
Complainant claimed that the alleged incident constituted harassment.
By final action dated July 14, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure to
state a claim. The agency determined that complainant did not suffer
a personal loss or harm with respect to a term, condition, or privilege
of his employment. Thereafter, complainant filed the instant appeal.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court found that harassment is actionable, even absent a claim that
any agency's action harmed complainant in a specific term, condition,
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as 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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
The Commission has held that, under certain circumstances, a limited
number of highly offensive epithets or slurs about a federal employee's
race or national origin may state a claim or support a finding of
discrimination under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. �2000e et seq. See Yabuki v. Department
of the Army, EEOC Request No. 05920778 (June 4, 1993). Upon review
of the record, we find that the incident of March 12, 2003, even if
proven to be true, is not of sufficient severity or pervasiveness to
constitute harassment. We further find that the alleged action did not
cause complainant to suffer harm to a term, condition, or privilege of
his employment. Accordingly, the agency's dismissal of the complaint
on the grounds of failure to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 10, 2003
__________________
Date