01992236_r
11-17-1999
Irving T. White, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Irving T. White, )
Complainant, )
)
v. ) Appeal No. 01992236
) Agency No. 98-62793-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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> Complainant received the final agency
decision on December 19, 1998. The appeal was postmarked January 15,
1999. Accordingly, the appeal is timely (see 64 Fed Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed the instant
complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on June 29, 1998.
On August 19, 1998, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discrimination on the basis of his race
(black) when an activity supervisor stated to another activity supervisor
within the hearing of a black employee �Do you know what those monkeys
in the Tech Library did?� Complainant claimed that this was a racially
motivated statement directed at him and his coworkers. Complainant also
claimed that the agency failed to take appropriate disciplinary action
against the supervisor. As relief, complainant requested in part that
he be awarded compensatory damages.
In its final decision, the agency dismissed the complaint on the grounds
of failure to state a claim. The agency determined that complainant
did not identify specifically how the supervisor's comment or the
activity's action adversely affected a term, condition, or privilege of
his employment. The agency further determined that complainant failed
to identify any concrete action taken against him. The agency therefore
also denied complainant's request for compensatory damages.
On appeal, complainant argues that the racial slur had a direct adverse
effect on his self-esteem and character in the workplace. Complainant
claims that respect for him among white coworkers has been damaged.
Complainant argues that he has been denied the privilege of working in
an environment free of racial harassment.
In response, the agency asserts that complainant has not identified
what concrete action was taken against him with regard to a statement
made by a supervisor not in his chain of command. The agency states
that complainant did not indicate what other incidents have occurred to
consider this one statement an environment of racial harassment.
ANALYSIS AND FINDINGS
Volume 64 of the Federal Register, 37,644, 37,656 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.107(a)(1)) provides that prior
to a request for a hearing in a case, the agency shall dismiss an entire
complaint which fails to state a claim under to 29 C.F.R. �1614.103
or �1614.106(a). For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title VII
(discrimination on the bases of race, color, religion, sex and national
origin), the ADEA (discrimination on the basis of age when the aggrieved
individual is at least 40 years of age) and the Rehabilitation Act
(discrimination on the basis of disability) shall be processed in
accordance with Part 29 C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether a claim is
within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has claimed employment discrimination
covered by the EEO statutes. 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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings 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 the 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 the 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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
As a general rule, derogatory remarks, standing alone, do not sufficiently
harm a person for the purposes of standing. The Commission requires
that a remark or comment be accompanied by a concrete action in order
for a complainant to suffer sufficient injury to be aggrieved. Cobb,
supra.. Of course, such a holding must also be viewed in light of the
large body of law surrounding hostile environment claims. The distinction
being that an isolated remark may not cause sufficient injury to aggrieve
an employee, but when the remarks become severe and pervasive they can
create a hostile environment.
There remains no real rule that can be extracted from the Commission's
decisions involving derogatory remarks that provides clear guidance on the
difference between isolated comments, that the Commission regards as not
injuring an employee, and comments sufficient to aggrieve a complainant.
Though one factor the Commission will look at in such cases is background
evidence that relates to the overall environment.
The Commission has also held that, under certain circumstances, a
limited number of highly offensive slurs or comments about a federal
employee's race or national origin may in fact support a finding of
discrimination under Title VII. Brooks v. Department of the Navy, EEOC
Request No. 05950484 (June 25, 1996). See also Yabuki v. Department of
the Army, EEOC Request No. 05920778 (June 4, 1993) (where a supervisor
stood at the water cooler, pointed his finger at complainant's face,
and declared disparagingly in front of other employees, �it is because
of [complainant]� that the Japanese people will soon own the country);
Gamboa v. United States Postal Service, EEOC Request No. 05890633
(August 31, 1989) (the Commission held that a single incident involving
two humiliating remarks by appellant's supervisor, taking place in a
public forum, stated a claim for disability discrimination).
Complainant claimed that he was subjected to racial harassment when the
supervisor stated �Do you know what those monkeys in the Tech Library
did?� We find that this statement, by itself, lacked sufficient
pervasiveness or severity to rise to the level of harassment. The
statement was an isolated remark that did not adversely affect complainant
with regard to a term, condition, or privilege of his employment. As for
complainant's request for compensatory damages, we note that where
a claim fails to render a complainant aggrieved, it is not converted
into a processable claim merely because the complainant has requested
compensatory damages. Laratonda v. United States Postal Service, EEOC
Appeal No. 01933846 (March 11, 1994). In the absence of a showing that
a complainant has suffered personal loss or harm with respect to a term,
condition, or privilege of employment, a claim for compensatory damages
is not processable. See also, Gjersvold v. Department of the Treasury,
EEOC Appeal No. 01941041 (April 7, 1994). Accordingly, the agency's
decision to dismiss this complaint for failure to state a claim was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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. 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 (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:
November 17, 1999
_________________ _____________________________
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 and the agency on:
______________________
______________________
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.