01983325
05-12-1999
Michael J. Lewis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michael J. Lewis v. Department of the Navy
01983325
May 12, 1999
Michael J. Lewis, )
Appellant, )
)
v. ) Appeal No. 01983325
) Agency No. 98-60050-002
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on February 23, 1998. The appeal was postmarked March 23, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on October 8, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
he was discriminated against when in October 1996 and September 1997
[named individual], President of the American Federation of Government
Employee's (AFGE) local Union, made derogatory remarks about appellant
and how he earned his position within the agency, referred to him using a
racial epithet, and said that all black men are stupid in front of other
agency employees . Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, on November 15, 1997, appellant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of race (black), and color (black).
On February 18, 1998, the agency issued a final decision (FAD) dismissing
appellant's complaint for failure to state a claim. Specifically,
the agency determined that appellant failed to demonstrate that he had
been aggrieved within the meaning of the EEOC Regulations, or that he
had been injured with respect to a term, condition, or privilege of
employment. The agency found that the allegations involved union matters
rather than actions of the agency. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(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).
As a general rule, derogatory remarks, standing alone, do not sufficiently
harm a person for the purposes of standing. The Commission requires
that a remark or comment be accompanied by a concrete action in order
for a complainant to suffer sufficient injury to be aggrieved. See Cobb
v. Department of Treasury, EEOC Request No. 05970077 (March 13, 1997).
The Commission has also held that, under certain circumstances, a
limited number of highly offensive slurs or comments about a federal
employee's race or national origin may in fact support a finding of
discrimination under Title VII. Brooks v. Department of the Navy, EEOC
Request No. 05950484 (June 25, 1996). See also Yabuki v. Department of
the Army, EEOC Request No. 05920778 (June 4, 1993)(where a supervisor
stood at the water cooler, pointed his finger at appellant's face, and
declared disparagingly in front of other employees, "it is because of
[appellant]" that the Japanese people will soon own the country); Gamboa
v. U.S. Postal Service, EEOC Request No. 05890633 (August 31, 1989)(the
Commission held that a single incident involving two humiliating remarks
by appellant's supervisor, taking place in a public forum, stated a claim
for disability discrimination)(citing, Baily v. Binvon, 583 F.Supp. 923,
925 (N.D. III. 1984).
To determine whether a work environment is objectively hostile or abusive,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift System, Inc., 510 U.S. 12, 21
(1993). While the trier of fact should consider all relevant factors,
no single factor is required to establish a hostile or abusive work
environment claim. Id.
Based on a careful review of the record including appellant's complaint,
the report of the EEO Counselor as well as appellant's statements on
appeal, the Commission finds that under the circumstances presented
herein, the agency properly dismissed appellant's complaint for failure to
state a claim. Appellant has alleged discrimination by a union official
in his capacity as full time union president. The Commission regulations
do not include unions within coverage of the Part 1614 regulations.
See Reardon v. United States Postal Service, EEOC Appeal No. 01860152
(November 19, 1985) citing Newhold v. United States Postal Service, 614
F.2d 712 (8th Cir. 1982). Therefore, appellant does not state a claim
within the meaning of Part 1614 of the EEOC Regulations. Based on the
record, we must affirm the decision of the agency.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
May 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations