Maurice Tolan, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a51551 (E.E.O.C. Mar. 30, 2005)

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