0120110091
02-10-2011
Sylvia D. Colley, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Sylvia D. Colley,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120110091
Agency No. 2010-23368-FMCSA-02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 24, 2010, dismissing her 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.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (African-American) and sex (female)
when:
1. In September 2009, Complainant's supervisor (Supervisor) did not
provide Complainant with information that is provided to others in the
office; and
2. The Supervisor subjected Complainant to demeaning remarks and profane
language. In support of her claim of harassment, Complainant indicated
the following events as examples:
a. On March 4, 2010, the Supervisor falsely accused Complainant of making
an error, however, he later determined that it was made by Complainant's
co-worker,
b. On March 1, 2010, the Supervisor informed Complainant about the
Agency's furlough. He then checked on Complainant a half hour later.
He saw her and asked Complainant," What's your ass doing in the office."
After Complainant indicated that she wanted to close down her office,
the Supervisor said "If your ass is not gone by 11:00 AM, then you'll
be taken out in handcuffs."
c. In January 18, 2010, the Supervisor commented to Complainant, "No
fucking laughing until you finish the budget," when he overheard her
laughing during a conversation between Complainant and a co-worker.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact. In addition, the Agency noted
that the complaint alleged a single claim of harassment. The Agency
dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Complainant appealed asserting that her contact was timely. Further,
Complainant indicated that the Supervisor used profanity towards her
creating a hostile work environment. She believed that his manner of
speech was demeaning and degrading. She also noted that the Supervisor
would follow her and question her interactions. Complainant added that
the Supervisor told her that she was not a team player and did not check
with him enough before working on assignments. The Agency requested
that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In determining whether a harassment complaint states a
claim in cases where a complainant had not alleged disparate treatment
regarding a specific term, condition, or privilege of employment,
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.
See Estate of Routson v. National Aeronautics and Space Admin., EEOC
Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, 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. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February
16, 1995). Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Dept. of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: 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. Harris, 510 U.S. at 23.
In the complaint at hand, Complainant alleged she was subjected to
harassment when the Supervisor failed to provide her with information
and used profanity when he spoke with her. Upon review, we find that
the alleged events did not result in any harm. We agree with Complainant
that the use of profanity in the workplace is not professional. However,
we find that events raised by Complainant, taken as a whole, are not
so severe or pervasive enough to create a hostile work environment.
Therefore, we find that the Agency's dismissal of the complaint pursuant
to 29 C.F.R. � 1614.107(a)(1) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 10, 2011
__________________
Date
2
0120110091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110091