01982362
04-27-2000
Igor Brodetski, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Igor Brodetski v. United States Information Agency
01982362
April 27, 2000
Igor Brodetski, )
Complainant, )
)
v. ) Appeal No. 01982362
) Agency No. OCR-97-40
Joseph D. Duffey, )
Director, )
United States Information Agency, )
Agency. )
____________________________________)
DECISION
On January 29, 1998 , complainant filed a timely appeal with this
Commission from a final agency decision pertaining to his 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. <1> The
agency characterized the complaint as alleging that he was subjected
to continuing discrimination on the basis of reprisal for prior EEO
activities and subjected to harassment when:
On June 30, 1997, his rating officer provided him a mid-term
document summarizing his discussion of June 29, 1997, regarding his
work performance for the period May 1, 1996 through April 30, 1997,
which was in violation of time limits for such discussions and which
contained slanderous statements and was inappropriate; and
On July 12, 1997, his supervisor accused him of reading a book instead
of completing an assigned script translation.
The agency dismissed claim (1) as a proposed action and claim (2)
for failure to state a claim. Specifically, the agency determined
that the mid-term document at issue in claim (1) was a proposed action
under discussion between complainant and the Rating Officer, was not
placed in his "performance file," and did not constitute a present
harm to complainant. The agency also determined that for claim (2),
complainant was not harmed with respect to a term, condition or privilege
of employment.
The record discloses that complainant filed claims (1) and (2) as separate
complaints, which were then consolidated by the agency. In each of his
complaints, and on appeal, complainant asserts that he is a victim of
slander and harassment.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)) provides,
in part, that the agency shall dismiss a complaint that alleges that
a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory. The Commission has stated
however, that a complaint may not be dismissed under this section when the
complainant alleges, as in the present case, that the preliminary step was
taken for the purpose of harassing the individual for a prohibited reason.
In such a case, the agency's action has already affected the employee.
Rodriguez-Soto v. Army, EEOC Request No. 05960646 (October 8, 1998).
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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). In determining whether a harassment complaint states a
claim, 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. Id.
Additionally, 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); see Cobb, supra.
Complainant has only articulated two alleged instances of isolated
harassment as contributing to a hostile work environment. Moreover,
there is no evidence that any action was ever taken against complainant,
and the agency's assertion that the mid-term document was not placed in
complainant's "performance file" has not been challenged by complainant.
The Commission therefore finds that complainant has not demonstrated that
the alleged conduct that he complains of is so severe or pervasive so
as to constitute a hostile work environment. Furthermore, complainant
has not shown that he suffered harm with respect to a term, condition,
or privilege of employment. Therefore, we find that the complaint fails
to state a claim.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 27, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.