05A20089
01-24-2002
Ronald L. Pettigrew, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ronald Pettigrew v. Department of the Army
05A20089
January 24, 2002
.
Ronald L. Pettigrew,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05A20089
Appeal No. 01A05363
Agency No. AVEUFO0006A0180
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Ronald
Pettigrew v. Department of the Army, EEOC Appeal No. 01A05363 (August
22, 2001).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
For the reasons set forth herein, complainant's request is denied.
ISSUE PRESENTED
Whether the Commission's previous decision correctly interpreted the
law in affirming the agency's final decision (FAD), dated July 11, 2000,
dismissing the complaint for failure to state a claim.
BACKGROUND
Complainant initially filed a timely appeal with this Commission from
the FAD, dismissing his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The FAD dismissed the complaint
on the grounds that the complaint failed to state a claim in that
the complainant was not �aggrieved� as required by EEOC regulation 29
C.F.R. �1614.107(a)(1).
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Black) when he was harassed, and
subjected to a hostile work environment, as follows:
In June or July 1997, while on a legitimate break, complainant was
sitting on the pier, at his work location, with another employee, when
LM approached and asked if complainant had any work that complainant
could be doing.
Several weeks later in June or July 1997, complainant alleged that he was
on the phone and as LM walked by him LM asked complainant why complainant
was on the phone and out of complainant's work area.
In 1998, complainant alleged that LM made comments about complainant to
complainant's supervisor.
In April 1999, complainant alleged that LM would lock himself in the
office denying complainant and other employees access to the phone.
Complainant also alleged that LM questioned complainant's time and
attendance after seeing complainant sitting in a car after the lunch
hour was over, and when LM stated that complainant had supposedly left
the work site.
On May 26, 2000, complainant alleged that LM scowled at him when both
of them were leaving the work area.
The agency found that the complainant was not aggrieved, because no
personnel action resulted and complainant did not suffer loss with
respect to a term, condition or privilege of employment. The Commission's
previous decision affirmed the FAD. Our decision set out the applicable
legal standards and found that Complainant's allegations did not state
a claim of hostile work environment. The Commission found that the
conduct complained of were five incidents over a four-year period by a
supervisor who had no supervisory authority over complainant. Further,
the complainant did not specifically allege that any of LM's remarks or
actions were the result of his race.
The complainant requested responses to questions proposed in the
letter, such as: Why should there be a single incident of harassment?;
What do you state as enough to justify discrimination, harassment or
racism?; Why should I have another supervisor harass me about anything?
Further, the complainant states that the previous investigation was not
a fair assessment of all the facts. The complainant also included some
documents already in the record, medical documentation, and a decision
made by the U.S. Department of Labor, Office of Workers' Compensation
Programs, allowing complainant's workers claim to proceed as accepted
for an episode of acute anxiety based upon harassment by LM.<2>
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
A request for review is not a second opportunity for appeal, and the
Commission's scope of review on a request for reconsideration is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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). To state a claim under our regulations,
an employee must allege and show an injury in fact. Specifically,
an employee must allege and show a "direct, personal deprivation at
the hands of the employer," that is, a present and unresolved harm or
loss affecting a term, condition or privilege of his employment. Id.
In the instant case the complainant did not allege or show any harm or
loss affecting a term, condition or privilege of his employment.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney
v. Dole, 765 F.2d 1129, 1138, (D.C. Cir. 1985). In determining whether
a harassment complaint states a claim in cases where a complainant had
not alleged disparate treatment regarding a specific term, condition, or
privilege of employment, the Commission has repeatedly examined whether a
complainant's harassment claims, when considered together and assumed to
be true, were sufficient to state a hostile or abusive work environment
claim. See Estate of Routson v. National Aeronautics and Space
Administration, EEOC Request No. 05970388 (February 26, 1999). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all the circumstances, including
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 Systems, 510 U.S. 17 (1993).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 13555, 1358 (11th Cir. 1982).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995).
The alleged conduct or incidents, which occurred over a four-year period,
consisted of LM asking complainant if he had any work that complainant
could be doing; LM walked by him while complainant was on the phone and
asked why complainant was on the phone and out of his work area; LM made
comments about complainant to complainant's supervisor; LM would lock
himself in the office denying complainant and other employees access to
the phone. Complainant also alleged that LM questioned complainant's
time and attendance after seeing complainant sitting in a car after the
lunch hour was over, and when LM stated that complainant had supposedly
left the work site. Also, complainant alleged that LM scowled at him
when both of them were leaving the work area.
Considering the frequency of the alleged discriminatory conduct and
the other factors, we do not find this conduct sufficiently severe
or pervasive to have unreasonably interfered with complainant's work
environment or created an intimidating, hostile, or offensive work
environment.
Complainant's additional submissions, while supportive of his claim, do
not provide evidence of any erroneous interpretation of material fact.
Further, the decision by the Office of Workers' Compensation Program was
issued on May 10, 2001, after the events in the complaint and after the
FAD was issued.<3>
CONCLUSION
Complainant has not offered argument demonstrating legal error in the
previous decision. Further, based on a review of the record, we find
that the previous decision properly affirmed the agency's
decision finding a failure to state a claim. After a review of the
complainant's request for reconsideration, the previous decision, and
the entire record, the Commission finds that the request fails to meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01A05363
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 tofile 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_January 24, 2002
Date
1 The complainant sent a letter, dated September 21, 2001, to the EEOC.
The letter requested that the EEOC answer questions proposed in the
letter. The letter was accepted as a request to reconsider and will be
considered as such.
2 The letter does not indicate that the agency was provided a copy of
the request or its enclosures.
3 The U.S. Department of Labor, Office of Workers' Compensation Programs
(OWCP), decision reversed a district office decision and found that
the complainant had submitted evidence indicating that he sustained an
emotional condition due, at least in part, to harassment by a supervisor
and returned the case to the district office. The issue before the
OWCP was whether the complainant sustained an emotional condition in
the performance of duty. Under EEOC regulations a complainant needs to
shown that he or she has been discriminated against because of a protected
bases. The Commission has discussed the factors used to determine whether
it is appropriate to apply collateral estoppel: (1) whether the present
claim involves the same parties as the prior litigation; (2) whether
the issue in the present claim is, in substance, the same as the issue
resolved in the prior litigation, i.e., was actually and necessarily
determined in the prior litigation; (3) whether controlling facts or
legal principles have changed significantly since the prior judgment;
and (4) whether other special circumstances warrant an exception to
the normal rules of preclusion. See, e.g., Buchhagen v. Department of
Health and Human Services, EEOC Request No. 05940948 (March 6, 1996).
The issue in the OWCP claim is not the same issue in the EEOC claim.