0120110825
08-28-2012
Barbara A. Johnson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Barbara A. Johnson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120110825
Agency No. FS201000622
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 20, 2010, dismissing her 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. For the following reasons, the Commission AFFIRMS the Agency's dismissal of Complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-2201-12, at the Agency's Northern Research Station in St. Paul, Minnesota. On July 1, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (from Chicago) and reprisal for prior protected EEO activity when:
1. In February 2010, management ignored her complaint that coworkers were disrespecting her "boundaries" by doing work on a project for which she had volunteered for;1
2. On April 14-15, 2010, during a workplace mediation held after she and a coworker got into a verbal altercation, the coworker's supervisor and the coworker made comments falsely characterizing her as a threat;
a. The coworker's supervisor stated that she was there "to protect her employee"
b. The coworker stated that she was afraid Complainant might "shoot and kill her"
3. On an unspecified date, a manager told her that her coworkers find her "intimidating" and "too assertive," to which she responded that the Agency had "sent [her] to classes to learn how to be assertive;" and
4. On unspecified dates, management did not communicate with her about workplace issues and chose instead to speak with her coworkers.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that the isolated incidents and comments described by Complainant were insufficient to render her aggrieved for the purposes of stating a claim of harassment. In addition, the Agency found that the alleged conduct was not reasonably likely to deter her or others from engaging in protected EEO activity. Further, the Agency found that Complainant failed to state a claim on the basis of national origin because being from Chicago is not a national origin. Finally, the Agency found that claim 2 failed to state a claim because comments made during a mediation session cannot be the basis of a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that management allowed her coworkers to interfere with projects she works on and ignored her complaints when she brought it to their attention. In addition, Complainant asserted that the parties at the mediation signed a disclosure waiver and reiterated that the coworker's supervisor implied that she was a physical threat to the coworker. Further, Complainant asserted that her work environment is extremely hostile due to such racist stereotypes2 and management's failure to address her concerns. Finally, Complainant asserted she had to seek medical attention because of the harassment.
The Agency did not submit a statement or brief in response to Complainant's appeal.
ANALYSIS AND FINDINGS
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 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 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 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 a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.D.3 (May 20, 1998); see also Carroll, supra
Upon review of the record, we find that Complainant has failed to state a claim of actionable harassment. Here, the conduct complained of consists of a few incidents in which management allegedly failed to address her concerns about coworkers interfering on her project, falsely implied that she was a potential threat, made a negative comment about her demeanor, and failed to communicate with her about workplace issues. We note that 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 Philips v. Dep't of Veterans Affairs, EEOC Request No. 05970388 (Feb. 26, 1996); Banks v. Health & Human Serv.,, EEOC Request No. 05940481 (Feb. 16, 1995). Additionally, remarks or comments unaccompanied by a concrete agency action usually are insufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). We find that the alleged incidents, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Moreover, we find that Complainant has not shown that the alleged incidents amount to actions that are likely to deter her or others from engaging in protected activity. Accordingly, we find that the Agency properly dismissed Complainant's complaint for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's dismissal of Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____8/28/12______________
Date
1 Complainant alleged that the coworkers were gathering information about the project in order to give an update on the project at an upcoming meeting, as if she was incapable of doing so herself.
2 This seems to refer to the alleged statements by the coworker's supervisor and the coworker.
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0120110825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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