01a45372
02-15-2005
Wanell Simmons, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Wanell Simmons v. Department of Labor
01A45372
02/15/05
.
Wanell Simmons,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A45372
Agency No. 02-06-112
Hearing No. 310-2003-05288X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Payroll Clerk in the agency's
Office of the Assistant Secretary for Administration and Management,
filed a formal EEO complaint on May 2, 2002. Complainant later amended
her complaint with the counselor and investigator. As a result, she
alleges that the agency discriminated against her on the bases of race
(African-American), sex (female), disability (post-polio syndrome),
and age (D.O.B. 7/3/54) when:
(1) on January 18, 2002, the Regional Finance Officer (RFO) refused to
sign the Cooperative Education Learning Objectives to permit Complainant
to enroll in Community College accounting classes and subjected her to
a hostile work environment; and
on April 3, 2002, complainant was not selected for the position of
Support Services Specialist, Vacancy Announcement No. DD 02-020.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination for allegation (1). The AJ did not address
allegation (2) because the claim has subsequently been subsumed into a
class allegation currently pending a class certification ruling.
The AJ found no discrimination on several grounds. First, the AJ
found that allegation (1) failed to state a claim because no adverse
employment action was taken against the complainant. The AJ noted that,
although the RFO did not sign complainant's request on the day she first
approached him, he approved it on the next business day. Alternatively,
the AJ found that complainant failed to establish a prima facie case of
discrimination on any of the alleged grounds because she failed to show
that members outside of her protected class were treated differently
than she. Finally, the AJ found that complainant failed to provide any
evidence that would discredit the agency's nondiscriminatory explanation
for its action, namely that the RFO had already approved payment for
complainant's training and signed the request the next business day.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as complainant failed to state a claim
in allegation (1). In order to state a judiciable claim, complainant
must be an "aggrieved employee," 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). The AJ correctly found that complainant
was not aggrieved as a result of the RFO not signing her training permit
immediately. Complainant was not prevented from attending community
college at agency expense because of the delay.
The AJ, however, failed to address complainant's hostile work environment
claim. She alleged that when the RFO initially refused to sign her
training permit he told her that he did not have time in a rude and
belittling way. Complainant also alleged that on the following business
day when she again sought permission for training that agency officials
did not conduct themselves in an encouraging or supportive manner,
but rather questioned her request and demanded alterations. Complainant
believes their behavior was a result of her membership in the alleged
protected classes.
We find that complainant's hostile work environment allegation fails to
state a judiciable claim because complainant is not aggrieved. 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).
Moreover, 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). Here, we find that complainant only experienced an
isolated rude response and encountered minor disagreement when she sought
approval of her training request. The agency's conduct did not rise to
a level of severity or pervasiveness as to render complainant aggrieved.
See Phillips, supra.
Therefore, after careful review of the record, we affirm the agency's
final action dismissing complainant's allegation (1) for failure to
state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_02/15/05_________________
Date