Laveda D. Montague, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 9, 1999
01991726_r (E.E.O.C. Dec. 9, 1999)

01991726_r

12-09-1999

Laveda D. Montague, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Laveda D. Montague, )

Complainant, )

)

)

v. ) Appeal No. 01991726

) Agency No. 9V1M99028

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

On December 21, 1998, complainant filed a timely appeal of a December 7,

1998 final agency decision, which was received by her on December 9,

1998, dismissing her complaint for failure to state a claim.<1>

In its final decision, the agency identified the claims of complainant's

November 17, 1998 complaint as whether complainant was discriminated

against when on October 8, 1998, her first level supervisor singled her

out and embarrassed her in front of an individual by asking �have you

swept your area� and on the same date, she was asked �are you going to

sit there and do nothing� which she felt was embarrassing. The agency

determined that complainant failed to show how she suffered harm to a

term, condition or privilege of her employment by the above acts; thus,

she was not aggrieved.

The EEO Counselor's Report indicates that complainant raised several

incidents of harassment which allegedly occurred in September and

October 1998, concerning her confrontations with her supervisor and

the supervisor's favoritism and/or mistreatment toward her coworkers.

The record contains a statement, signed and dated by complainant on

October 22, 1998, wherein she identified her supervisor's remarks on

October 8, 1998, described above, as the main issues of her case.

On appeal, complainant does not raise any new contentions. In response

to complainant's appeal, the agency asserts that although complainant

raised several incidents of harassment during her counseling, there is

nothing to indicate that she was frequently subjected to ridicule or

abuse that was so pervasive that her work became unbearable.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.107(a)(1)) provides that prior to a request

for a hearing in a case, the agency shall dismiss an entire complaint that

fails to state a claim pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.103).

In order to establish standing initially under 29 C.F.R. �1614.103, a

complainant must be either an employee or an applicant for employment

of the agency against which the claims of discrimination are raised.

In addition, the claims must concern an employment policy or practice

which affects the individual in his/her capacity as an employee or

applicant for employment. The agency shall accept a complaint from any

aggrieved employee or applicant for employment who believes that he/she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103

and .106(a). The Commission's Federal sector case precedent has long

defined an �aggrieved employee� as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Upon review, we find that the complaint involved derogatory remarks

made by complainant's supervisor on October 8, 1998. There is no

evidence in the record that complainant was subsequently disciplined

as a result of the incidents. The Commission has held that a remark

or comment, unaccompanied by concrete action, is not a direct and

personal deprivation sufficient to render an individual aggrieved.

See Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995) (to question an employee about his schedule did not

rise to the level of a personal loss or harm). In addition, we note

that complainant also claimed harassment, i.e., when her coworker made

a face at her, when she had confrontations with her supervisor, and

when her supervisor favored her male coworkers. It appears that these

matters were raised by complainant as background to support her complaint.

Furthermore, there is no evidence in the record that these incidents were

sufficiently severe or pervasive to alter the conditions of complainant's

employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Accordingly, the agency's final decision is hereby AFFIRMED.

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:

December 9, 1999

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 Equal Employment Assistant

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.