01981950
09-23-1999
Helen Kobell, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Helen Kobell v. Department of the Treasury
01981950
September 23, 1999
Helen Kobell, )
Appellant, )
)
v. ) Appeal No. 01981950
) Agency No. TD 98-3005
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on December 19, 1997. The appeal
was postmarked December 31, 1997. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on June 24, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) on or about June 24, 1997 she was placed below three of her
co-workers on the agency's Mock Reduction in Force (RIF) Roster based
on her minimally successful annual performance appraisal covering the
period April 1995 through March 3, 1996 which appellant alleges was
discriminatory; and
(2) on or about August 21, 1997, her manager threatened and harassed her
about receiving a coffee pot through the office mail. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on October
7, 1997, appellant filed a formal complaint alleging that she was the
victim of unlawful employment discrimination on the bases of religion
(Jewish), sex (female), age (3-11-43), and reprisal (prior EEO contact).
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on October 7, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination on
the bases of religion (Jewish), sex (female), age (3-11-43), and reprisal
(prior EEO contact).
On December 4, 1997, the agency issued a final decision (FAD) dismissing
allegation (1) of appellant's complaint as moot and allegation (2) for
failure to state a claim. Specifically, with respect to allegation (1)
the agency determined that the cancellation of the RIF eradicated any
discriminatory effects which may have arisen as a result of appellant's
name being placed on the RIF roster. Concerning allegation (2), the
agency determined that appellant failed to demonstrate that she had
suffered any direct harm or loss with respect to a term, condition,
or privilege of employment as a result of the alleged conduct by
appellant's manager. The agency also identified a third allegation
concerning appellant's performance rating. The agency determined that
appellant's minimally successful performance rating was addressed in
complaint No. TD 97-3018 filed by appellant on October 24, 1996 and
appealed to this Commission on September 28, 1997. The instant FAD
identified a prior agency decision dated September 2, 1997, in which
the agency dismissed appellant's performance rating allegation on the
grounds that it stated the same claim pending before the Commission.
See 29 C.F.R. �1614.107(a).
ANALYSIS AND FINDINGS
The record indicates that the agency identified a third complaint
allegation regarding appellant's performance rating. Upon review, we
determine that while appellant does allege that the agency's decision to
place her below three of her co-workers on the agency's RIF roster was
based on her performance rating, she is not challenging her minimally
successful rating in the complaint which gave rise to this appeal.
In that regard, we will not address that portion of the agency's decision
dismissing appellant's performance appraisal allegation.
Although the agency's December 4, 1997 FAD indicated that it was
dismissing allegation (1) the grounds that the matter was moot, we find
that appellant's RIF allegation is more appropriately dismissed because it
fails to state a claim. EEOC Regulation 29 C.F.R. �1614.107(a) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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; �1614.106(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).
Here, the record reveals that the agency proposed to have appellant's
position abolished in a RIF action, but that this event actually never
occurred. In fact, the record shows that the proposed abolishment was
subsequently canceled and appellant maintained her job position, grade
level and salary There is no argument or evidence to the contrary.
Appellant was not harmed with respect to a term, condition, or privilege
of her employment by the agency's proposed RIF which was subsequently
canceled.
In allegation (2) appellant alleges that on August 21, 1997 her manager
harassed and threatened her about receiving a coffee pot through the mail.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment allegations are sufficient to state
a hostile or abusive work environment claim, see Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission
has repeatedly found that allegations of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment claim.
For example, the Commission has held that allegations that a supervisor
had "verbally attacked" the complainant on one occasion, attempted
to charge him with AWOL, and disagreed with the time the complainant
entered into a sign-in-log, were insufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996).
Similarly, the Commission has held that allegations that on one occasion
a supervisor threw a file on the complainant's desk and berated her in a
loud voice in the presence of other employees causing her embarrassment
and humiliation were insufficient to state a harassment claim. See Banks
v. Health and Human Services, EEOC Request No. 05940481 (February
16, 1995). Based on EEOC Regulations and previous decisions of this
Commission, we find that the incident described by appellant in allegation
(2) fails to state a claim. It is also the opinion of the Commission
that allegations (1) and (2) together do not rise to the level needed to
state a claim of harassment, and appellant has not alleged a personal
loss or harm related to a term, condition, or privilege of employment.
The agency's decision to dismiss appellant's complaint was proper.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
September 23, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations