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.