01983391
06-14-1999
John I. Chapman, Appellant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission Agency.
John I. Chapman v. Securities and Exchange Commission
01983391
June 14, 1999
John I. Chapman, )
Appellant, )
)
v. )
) Appeal No. 01983391
Arthur Levitt, Jr., ) Agency No. SEC 52-97
Chairman, )
Securities and Exchange )
Commission )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated February 26, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
Appellant alleged that he was discriminated against on the bases of race
(African-American), gender (male), and color (black) when a GS-12 employee
(the same grade as appellant) was assigned to supervise appellant.
Appellant also alleged harassment when his supervisor called appellant
when he was at home on sick leave.<1>
The agency dismissed the appellant's complaint for failure to state
a claim. Specifically, the agency determined that it is common for
employees to report to supervisors of the same grade and it did not affect
a term, condition, or privilege of appellant's employment. The agency
also found that the alleged phone call did not constitute a hostile or
abusive work environment. Thereafter appellant filed this appeal.<2>
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).
In the instant case, the Commission finds that appellant has not
alleged facts sufficient to suggest he suffered a present harm or loss.
Therefore, appellant is not an "aggrieved employee" under �1614.103.
The Commission also observes that the alleged incidents are not sufficient
to state a claim of harassment. 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. In the present case, appellant has not
alleged facts sufficient to establish a claim of unlawful harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
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:
June 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1In the attachment to appellant's complaint, appellant describes his
work environment as "ongoing stressful and hostile". According to the
FAD, appellant advised the EEO counselor that his supervisor harassed
appellant when he called appellant at home. The agency treats this
incident as the second of appellant's allegations.
2On appeal, appellant also raises for the first time several new
allegations including:"glass ceiling" at agency bars his promotion,
called in for another interview after he thought he had already been
hired, and when he took problems to management he was blamed for them.
Appellant is advised that if he wishes to pursue these allegations
through the EEO process, he must initiate contact with an EEO Counselor.
The Commission advises the agency that the date appellant filed the
appeal statement in which he raised these allegations with the agency
shall be deemed to be the date of the initial EEO contact, unless he
previously contacted a counselor regarding these matters, in which case
the earlier date would serve as the EEO Counselor contact date.