01a51551
03-30-2005
Maurice Tolan, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Maurice Tolan v. Department of the Army
01A51551
March 30, 2005
.
Maurice Tolan,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51551
Agency No. ARCEMEM04JUL0107
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 28, 2004, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
and in reprisal for prior EEO activity when on July 24, 2004, complainant
did not receive a response as to whether or not he would be allowed to
ride the Motor Vessel Mississippi (MVM).
The agency dismissed the complaint for: (1) its failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1); and (2) complainant's
failure to respond to the agency's request for a clarification within the
allotted fifteen day time frame set forth in 29 C.F.R. � 1614.107(a)(7).
See Final Agency Decision (FAD).
Complainant provides no argument on appeal. The agency, in turn,
maintains that its dismissal was proper and additionally states that the
dismissal could be grounded on other bases, namely, that complainant
raises the same claim he raised in a prior complaint, and that
complainant failed to timely contact an EEO Counselor about his claim.
As the Commission finds that complainant's failure to state a claim is
sufficient grounds for dismissal, we will not address the agency's other
bases of dismissal.
Under EEOC regulations, 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.
See 29 C.F.R. �� 1614.103, 106(a) (2004). The Commission's federal
sector case precedent has long found an �aggrieved employee�to be one
who �has suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.)
In the instant case, complainant failed to demonstrate that the alleged
failure to respond to his interest in riding the MVM resulted in a harm
or loss that affected a term, condition, or privilege of his employment.
In fact, the agency points out that although his job as an electrician
did not require him to use or maintain a United State Coast Guard marine
license, which is needed to ride the MVM, he acquired one. The agency
states that complainant wanted to ride the MVM, not for any work function,
as his job duties did not require him to take on such activities (see
Position Description for Electrician (MG-2805-11, attached as Ex. A to
the Agency's Brief in Opposition to Appeal (Opp'n Brief)), but rather he
wanted to ride the MVM in order to gain experience hours towards updating
the license. See Opp'n Brief at 2, 6-8 (�Appellant will not be demoted,
reassigned or treated any differently because he does or does not possess
such a license... [or] because he does not upgrade his license.�). Thus,
we agree with the agency that although possessing the license and riding
the MVM may be beneficial to him personally, it does not constitute a
term, condition, or privilege of employment, and so, he does not state
an actionable claim.
Nevertheless, where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
complainant may still raise an actionable claim of harassment if it
is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See, e.g., Cobb v. Dep't of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). Whether the harassment
is sufficiently severe must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Examining the facts based
on these standards and in light of the above discussion, it is clear that
the lack of a response on whether or not he may ride the MVM is not a
sufficiently severe or pervasive form of harassment that had any effect
on complainants' employment, and as such, it is not an actionable claim.
Accordingly, we AFFIRM the dismissal of complainant's complaint.
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
March 30, 2005
__________________
Date