Neriessa M. Enriquez, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 24, 1999
01983901 (E.E.O.C. May. 24, 1999)

01983901

05-24-1999

Neriessa M. Enriquez, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Neriessa M. Enriquez v. Department of the Treasury

01983901

May 24, 1999

Neriessa M. Enriquez, )

Appellant, )

) Appeal No. 01983901

v. ) Agency No. 98-4136

)

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

On April 15, 1998, appellant filed a timely appeal of an April 8, 1998

final agency decision dismissing her complaint for failure to state a

claim.

In her March 18, 1998 complaint, appellant alleged that she was subjected

to discrimination based on her sex when on December 3, 1997, during a

conversation, a male manager leered at her chest. Appellant alleged

further that she then told the manager that her eyes were not on

her chest and asked him whether he remembered the sexual harassment

training that was given. Appellant also alleged that a few days later,

the manager complained to her supervisor that she (appellant) was not

properly performing certain duties. Appellant alleged that the manager

had not complained about her previously and that his complaint was based

on her comment to him about sexual harassment training.

In its final decision dismissing the complaint, the agency stated that the

manager's alleged behavior did not rise to the level of sexual harassment.

The agency further stated that the complaint concerned a single, isolated

incident and that although appellant indicated that the December 13,

1997 incident was not the first, appellant did not identify any other

incidents.

On appeal, appellant asserts that the agency did not perform a fair and

impartial investigation into her complaint. Specifically, appellant

asserts that the agency failed to interview all of the individuals

identified by her in her complaint and had the agency done so, it would

have determined that the manager had sexually harassed other female

employees.

The Counselor's Report reflects that appellant alleged that the December

3, 1997 incident was the latest in a serious of "previous gazes"

and remarks by the manager. The Counselor's Report also reflects that

appellant alleged that the December 3, 1997 incident was the most recent

incident in a continuing pattern of harassment by the manager and that

other females in her office had been subjected to inappropriate glances

by the manager.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may

dismiss a complaint or a portion of a complaint which fails to state a

claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall

accept a complaint from any aggrieved employee who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or a disabling condition.

See 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).

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 also held that unless the conduct is very severe,

a single incident or 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).

Upon review, we find that appellant has not alleged facts sufficient

to show that she was subjected to discriminatory harassment that

was sufficiently severe or pervasive to alter the conditions of her

employment. Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). Although appellant alleged that the December 3,

1997 incident was the most recent, appellant did not identify any other

incidents of alleged sexual harassment.

Regarding the alleged comment made by the manager, to the supervisor,

we find that that allegation also does not state a claim. 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. Banks v. Department of Health and Human Services, EEOC

Request No. 05940481 (February 16, 1995); Fuller v. U.S. Postal Service,

EEOC Request No. 05910324 (May 2, 1991). Appellant has not shown how

a term, condition, or privilege of her employment was affected by the

alleged remark. There is no evidence that the alleged remark resulted

in any concrete agency action being taken against appellant. We find

therefore that appellant's complaint fails to state a cognizable claim.

As a final matter, the Commission notes that to the extent that appellant

is claiming on appeal that the agency failed to investigate her complaint,

we note that the agency has no duty to investigate a complaint where,

as here, the complaint is procedurally defective.

Consistent with our discussion herein, the agency's dismissal of

appellant's complaint is AFFIRMED.

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. 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 (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 24, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations