01A43382_r
06-02-2004
Valda T. Johnson, Complainant, v. Vincent K. Snowbarger, Acting Executive Director, Pension Benefit Guaranty Corporation, Agency.
Valda T. Johnson v. Pension Benefit Guaranty Corporation
01A43382
June 2, 2004
.
Valda T. Johnson,
Complainant,
v.
Vincent K. Snowbarger,
Acting Executive Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 01A43382
Agency No. 03-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 31, 2004, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex, religion and reprisal for prior EEO activity when:
Business trips were scheduled that conflicted with dates of scheduled
arbitration hearings dealing with her outstanding grievances against
the agency.
Work was assigned to her that gave her insufficient time to prepare for
a meeting.
Complainant was informed by the agency's Human Resources Department during
March 2003 that her application for an actuary position was incomplete.
Complainant experienced difficulty in obtaining materials needed to
teach an ERISA course, and the course was postponed and rescheduled.
One of complainant's supervisors made comments that by inference
complainant considered to be racially insensitive or otherwise were
inappropriate.
An employee of an agency contractor responded unprofessionally to a
request for information from complainant.
After having leave approved, complainant learned that leave slips could
not be located and she made a telephone call to make sure that her status
as being on approved leave was properly recorded.
The agency dismissed those allegations of complainant's complaint
occurring prior to February 7, 2003, pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency noted
that complainant failed to initiate counselor contact until March 24,
2003. The agency dismissed the entire complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim.
With regard to issue (1), the agency notes that complainant failed to
allege any specific agency business trip that required her to travel
in conflict with dates of scheduled arbitration hearings. Further, the
agency states that complainant has failed to articulate how the alleged
conflicts adversely affected her.
With regard to issue (2), the agency acknowledges that in April 2003, a
case was reassigned to complainant at her request. The agency states that
complainant told her supervisor that she would not be able to complete
the assignment prior to a scheduled meeting and the case was reassigned
and complainant received another assignment. The agency states that
with regard to issue (2), complainant failed to show that she suffered
a harm or loss with regard to term, condition or privilege of employment.
With regard to issue (3), the agency notes that complainant was given
a March 12, 2003 letter from the agency's Human Resources Department
stating that her application was incomplete. The agency states that
shortly after March 12, 2003, complainant was given the opportunity
to submit the missing information. The agency states it subsequently
sent complainant a March 20, 2003 letter that she was rated eligible
for the position. Thus, the agency argues that since complainant was
considered for the position, although not selected, she was not harmed
by the March 12, 2003 letter.
With regard to issue (4), the agency states that the ERISA program was
rescheduled due to insufficient class size. The agency notes that the
ERISA program was held on August 12, 13 and 14, 2003, with complainant
as the primary instructor. The agency states that there was some
inconvenience for complainant in obtaining the relevant materials, but
notes that she did obtain the necessary information and successfully
taught the class. The agency states that the alleged incident did not
have a concrete effect on her employment status and did not result in
any employment action by the agency or change in a term, condition,
or privilege of employment.
With regard to issue (5), the agency explains the alleged comments at
issue included five separate comments. The first comment described by
the agency was made by a Caucasian division manager who stated that he did
not consider himself �too smart�because he attended a certain university.
Complainant claims that the university referred to is a historically
black institution, and that since she also attended a historically black
institution, albeit a different one from the one attended by the manager,
the statement constituted discrimination. Additionally, the second
incident described by the agency was made in a conversation concerning
complainant's business trip to Montreal. Complainant claims that the
division manager stated that while he was in Montreal he had been the
victim of a theft and that perhaps he stayed in a bad section of town,
�sort of like Southeast, D.C.� Complainant alleges that this comment was
discriminatory because the population of Southeast Washington D.C. is
predominantly black. The agency argues that the two statements were
not severe or pervasive and did not interfere with complainant's work
performance. The agency stated, however, that the division manager and
other managers and supervisors within the agency's Insurance Operations
Division will attend a training program on the subject insensitive
comments in areas protected by the laws administered by the EEOC.
Third, complainant alleged that the division manager approached her to
discuss a flexiplace issue involving an employee who was a union steward
and she claimed that as the union president, she considered this to
be inappropriate. The agency states that this incident involves union
activity and is not protected under the civil rights laws. Fourth,
complainant alleges that her manager used another Black employee to
sign documents involving actions against Black employees initiated by
the division manger. The agency claims that this incident does not
state a claim. Fifth, complainant alleges that the division manager
made insensitive comments concerning a promotion that was the subject
of her arbitration proceeding. The alleged comment described by the
agency was a statement that the actuary who was promoted had accepted a
position that did not have enough interesting work and that the better
work was in the division in which complainant worked. The agency argues
that complainant failed to show that she was harmed by this comment.
With regard to issue (6), the agency notes that complainant alleges
that on August 13, 2003, an outside contractor, in response to her
request for documentation, sent her an electronic mail message stating
that �This is bullshit.� The agency notes that upon learning of this
message, complainant's supervisors immediately notified complainant that
the contractor had acted in an unacceptable way and that this would be
addressed with the contractor's management. Complainant claimed that
when a complaint in the past involved the comments of a union member,
the union member was investigated, thus she claimed the handling of the
contractor's statement constituted discrimination. The agency dismissed
this claim noting that union activity or membership without more is
not protected under the laws administered by EEOC. Further, the agency
found that complainant did not suffer a direct, personal deprivation at
the hands of the employer or suffer any harm or loss to her employment.
With regard to issue (7), the agency notes that complainant received
approval to take annual leave in July 2003. Complainant claims that when
she called in to make sure her attendance would be recorded properly,
she learned that her approved leave and other leave slips could not be
located. The agency notes that complainant's leave was properly recorded.
The agency states that upon returning to work, she learned the lost leave
slips had been found. In her complaint, complainant states that she
suspected there were different leave standards for union and non-union
employees. The agency stated that union activity or membership alone
is not protected under the laws administered by the EEOC. Further, the
agency found that complainant failed to demonstrate that she suffered
a direct, personal deprivation at the hands of her employer or that the
employer caused her to suffer a direct harm or loss to her employment.
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. 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,
.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).
Upon review, we find that the agency properly dismissed complainant's
complaint for failure to state a claim. At the outset, we note that
complainant does not challenge the framing of the claims by the agency.
With regard to issue (1), we find complainant has failed to specifically
identify any business trip that was scheduled in conflict with an
arbitration meeting and has failed to show how such a scheduling
conflict resulted in a personal harm to her. With regard to issue (2),
the agency contends, without dispute from complainant, that the alleged
work assignment was reassigned to another employee without an adverse
effect on complainant's employment. With regard to issue (3), we find
the agency has stated without dispute from complainant, that she was
allowed to cure the defect to her application cited in the March 2003
letter and was rated eligible and considered for the position at issue.
With regard to issue (4), the record reveals that the ERISA course was
postponed and rescheduled with complainant successfully teaching the
course without harm to complainant. With regard to issues (5) and (6),
we find that the alleged comments fail to rise to the level of a hostile
work environment. The Commission has repeatedly found that remarks or
comments unaccompanied by a concrete agency action are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996). With regard to issue (7),
the agency contends, without dispute from complainant, that complainant's
leave was approved and recorded correctly. Thus, with regard to issues
(1) - (7), we find that complainant has failed to show that she suffered
a specific harm or loss to a term, condition or privilege of employment
for which there is a remedy.
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
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
June 2, 2004
__________________
Date