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