01A12856
09-26-2002
Ellis H. Maupin, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Ellis H. Maupin v. Department of Energy
01A12856
September 26, 2002
.
Ellis H. Maupin,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A12856
Agency No. 0107HQ
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 18, 2000, 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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's dismissal of complainant's complaint.
The record reveals that complainant commenced working for the agency
in July 1973. In 1985, he was elected as the president of the National
Treasury Employees Union (NTEU) Chapter 213. As president, complainant
negotiates agreements with management, and represents employees in
resolving disputes either through grievances or in negotiated settlements.
In June 2000, complainant contends that it became apparent that the
agency head (M1) possessed a strong dislike for him because of his
race, sex, and his participation in protected activity. Specifically,
complainant contends that from December 1998 to June 2000, several
incidents occurred whereby disparaging remarks were communicated to him
by M1 and other key management officials. In or around January 1999,
a management official stated that complainant �needed to be put in his
place.� Another incident occurred in May 1999 during the planning of a
rally against the agency when a management official told complainant to
�watch his back.� Complainant contends that the management officials
who were involved in the incidents were rewarded with promotions.
Complainant sought EEO counseling on June 8, 2000. Because of a
conflict of interest, complainant asked that another agency investigate
his complaint. On August 31, 2000, complainant elected to enter into
mediation to resolve his concerns. Mediation failed and complainant
filed a formal complaint on October 25, 2000. Complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
sex (male), and/or reprisal (prior EEO activity under Title VII) when:
M1 personally took actions to undermine his leadership as President of
NTEU, Chapter 213, using Blacks in Government (BIG), and other agency
officials to carry out his intentions;
M1 pursued partnership with Chapter 213, but did not want to deal
with him;
M1 actively colluded with BIG, rewarding its officers, for doing his
bidding to force him out of the union presidency and to undermine his
authority;
M1 repeatedly threatened him personally, as well as sent threatening
messages via other staff;
he became the subject of derogatory and disparaging remarks such as
he �sulks� and is a �whiner� and �dresses professional because he grew
up poor�;
M1 and his senior staff used the Executive Vice President (VP1) of NTEU's
Chapter 213 to undermine his leadership;
BIG published harassing and disparaging articles about him in its June 7,
2000, newsletter;
VP1 contacted the NTEU National Office and lodged a complaint that he
was using the union to settle his EEO complaint; and
on November 6, 2000, an article appeared in the Federal Times with
statements indicating complainant's dislike for M1.
On December 18, 2000, the agency dismissed the complaint on the bases
that complainant had not timely contacted an EEO counselor contact
and/or failed to state a claim. See 29 C.F.R. � 1614.107(a)(1) and (2).
In regard to the timeliness of his claims, the FAD concluded that because
complainant contacted an EEO counselor on June 8, 2000, in order to be
considered timely, the actions complained of must have occurred no earlier
than April 25, 2000. The FAD found that complainant was aware that he was
the target of disparaging remarks as early as December 1998. The FAD also
found that complainant realized during the spring of 1999 that the named
individuals were trying to manipulate the June 1999 election. In regard
to his failure to state a claim, the FAD concluded that complainant's
claim centers entirely on his affiliation with the union and does not
pertain to any term, condition, or privilege of his employment.
On appeal, complainant contends that his EEO counselor contact was timely.
In particular, complainant asserts that he did not become aware that the
harassing actions toward him were motivated by discriminatory animus
and/or retaliatory motive until June 2000. Complainant also contends
that his race and sex was a factor in the harassing behavior because he
was running against a Caucasian female in the last union election.
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). In order to state a claim under the regulations set forth at
29 C.F.R. Part 1614, complainant must show that he is �aggrieved.� See
Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,
1990). 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).
Here, complainant contends that the agency discriminated against him on
the bases of race, sex, and/or reprisal when M1 personally took actions
to undermine his leadership as union president, using BIG, and other
agency officials to carry out his intentions. However, the Commission
has held that, except in limited circumstances, the EEO process is not
a mechanism to attack internal union matters or proceedings, and such
claims are properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Because the Commission finds that (1), (2), (3), (6), (7), (8) and (9)
are based on complainant's position as union president, we conclude that
complainant failed to state a claim. The Commission further notes that
(7) and (9) do not challenge an agency action.
Complainant also contends that the agency discriminated against him on the
bases of race, sex, and/or reprisal when M1 or other officials allegedly
made several disparaging remarks about complainant and reportedly
threatened him personally. See (4) and (5), supra. Thus, complainant
is contending that these remarks constituted harassment based upon his
membership in protected classes. The Commission has repeatedly found that
unless the conduct is very severe, a group of isolated incidents will
not be regarded as creating a hostile work environment. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995); James v. Department of Health and Human
Services, EEOC Request No. 05940327 (September 20, 1994); see also Harris
v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). A supervisor's remarks
on several occasions unaccompanied by any concrete action are usually
not sufficient to state a claim of harassment. Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996). We find
that in the instant case, the complaint challenges isolated incidents
which are not severe enough to state a claim of harassment. See, e.g.,
Zhang v. United States Postal Service, EEOC Request No. 05940481 (July 17,
1998) (supervisor yelling at complainant on one occasion is insufficient
to demonstrate that complainant's work environment was altered so as to
state a claim for harassment); Banks v. Department of Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995) (allegations that
on one occasion supervisor threw a file on complainant's desk and berated
her in a loud voice in the presence of other employees, causing her
embarrassment and humiliation, insufficient to state a harassment claim).
Based on the foregoing, we find that the agency's dismissal of
complainant's claims was proper. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision we affirm the FAD.
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
September 26, 2002
__________________
Date