Ronald L. Pettigrew, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 24, 2002
05A20089 (E.E.O.C. Jan. 24, 2002)

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.