APPELLANT,
v.
ROBERT E. RUBIN, SECRETARY, DEPARTMENT OF THE TREASURY, AGENCY.

Request No. 05970077
Appeal No. 01960215
Agency No. 95-2325

March 13, 1997

GRANT OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On October 28, 1996, the agency timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reconsider the decision in Appellant v. Department of the Treasury, EEOC Appeal No. 01960215 (September 24, 1996), received by the agency on September 27, 1996. [FN1] EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the previous decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons set forth herein, the Commission grants the agency's request pursuant to 29 C.F.R. §1614.407(c)(2).

ISSUE PRESENTED

The issue presented is whether the previous decision erred when it held that the agency's dismissal of the appellant's complaint for failure to state a claim was improper because the appellant had alleged "harassment" based on his race (Caucasian), physical disability (unspecified), and reprisal (prior EEO activity).

BACKGROUND

The appellant alleged in his August 18, 1995 complaint that the agency discriminated against him based on his race and physical disability as alleged in his informal complaint. In his informal complaint, the appellant alleged that based on his physical disability and reprisal, at a July 6, 1995 meeting between agency officials and union leaders, an agency official referred to him as a trouble maker and a bad union president and indicated that he and two other employees would not be allowed to return to the Police Unit because of their medical problems. The appellant indicated that the agency official's statements, that he and two others were trouble makers because they were seeking medical help for illnesses caused by the agency, were appalling. The appellant also alleged that these open discussions with other members of the Police Unit, who were potential witnesses in his EEO complaint, created the impression that he was a trouble maker and, therefore, that his complaints should not be considered credible. The appellant further indicated that he considered public discussions of this nature to have violated his privacy rights.

According to the EEO Counselor's Report, the appellant had filed the following prior EEO complaints: (1) an April 28, 1995 formal complaint (agency no. 95-2218) alleging discrimination regarding leave without pay and disability; (2) a formal complaint (agency no. unknown) alleging discrimination regarding disparaging remarks; (3) a June 2, 1995 formal complaint (agency no. 95-2254) alleging denial of access to the agency facility, negative comments, and disparaging remarks; (4) a June 23, 1995 formal complaint (agency no. unknown) alleging discrimination regarding remarks made during roll call; and (5) a July 19, 1995 informal complaint alleging discrimination regarding negative statements about him. [FN2]

The final agency decision dismissed the appellant's complaint for failure to state a claim. Based on the EEO Counselor's Report, the decision found that the appellant was not present at the July 6, 1995 meeting and, thus, did not hear the allegedly derogatory comments. The decision also found that the appellant's discovery of the alleged com-ments did not create any harm with respect to a term, condition, or privilege of the appellant's employment. The decision observed that the appellant had not alleged that he had suffered any direct or personal deprivation due to the alleged remarks or identified any agency action taken in connection with the alleged remarks.

On appeal, the appellant, through his attorney, contended that after the July 6, 1995 meeting between two agency officials and two union officials, he learned that disparaging remarks against him were made by an agency official, including allegations that he had been derelict in his duties as the former president of the union. The appellant con-tended that the "implication" of the statements was that the appellant had been placed on Leave Without Pay status for misconduct. The appellant contended that these statements were made to inflict harm on his reputation, and that further investigation would reveal that "these falsehoods are the merest tip of the iceberg of slander and libel that has been leveled against [the appellant] since the time he began to participate in the equal employment arena."The appellant contended that these statements were evidence of a "pattern of behavior" designed to discredit him in the eyes and ears of the entire police force. The appellant represented that the vendetta waged against him was made known to him by the reports of other officers who objected to the numerous other derogatory statements that had been made to compromise the appellant's standing among his peers and supervisors. The appellant further contended that the harm he has suffered has compromised his ability to pursue his claim and has done irreparable harm to his prospects for advancement within his chosen profession. The agency did not file a response to the appellant's appeal.

The previous decision reversed the agency's dismissal of the appellant's complaint for failure to state a claim and remanded the complaint for investigation. The previous decision indicated that the Commission had held, in Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996), that a complainant states a claim where he or she has alleged "harassment" because of a protected basis (race, sex, national origin, color, religion, age, or disability). The previous decision found that the appellant had alleged that he was, and continues to be, subjected to harassment because of his race, physical disability, and reprisal for his prior EEO activity. The previous decision also found that the agency's conclusion as to whether appellant's complaint meets the Commission's definition of harassment went to the merits of the complaint rather than to whether appellant had stated a claim.

The agency contends in its request for reconsideration that according to the complaint and the EEO Counselor's Report, the sole allegations of discrimination raised in the instant complaint involved the comments made at the July 6th meeting. The agency contends that, therefore, the previous decision erred when it considered allegations raised for the first time on appeal in finding that the appellant had alleged that he was, and continues to be, subjected to harassment because of his race and physical disability and in reprisal for prior EEO activity. The agency also contends that the previous decision wrongly concluded that the agency had considered the merits of the appellant's complaint in finding that the complaint did not state a claim, since prior Commission decisions have found that investigations were not warranted when an allegation failed to state a claim of adverse treatment which did not rise to the level of a processable allegation. Finally, the agency points to the Commission's affirmance of the agency's dismissal of a complaint from a different complainant which also involved allegedly derogatory comments made during the same July 6, 1996 meeting. Joe R. Patterson v. Department of the Treasury, EEOC Appeal No. 01960679 (September 18, 1996), request for reconsideration pending, EEOC Request No. 05970071.

In response, the appellant, through his attorney, contends that his complaint cited a number of instances of harassment other than the July 6, 1995 meeting, for example, the appellant's being placed on leave without pay in March of 1995. The appellant also contends that even if he had not identified additional discrete incidents of harassment, his complaint would state a claim because he had alleged that the July 6th incident was part of a pattern of harassment and such a claim is valid whether or not specific dates of the other incidents are cited. The appellant further contends that since his allegations involve more than a single meeting, they cross the threshold of processable allegations requiring investigation. Finally, the appellant contends that the Commission has not yet finally decided the Patterson case upon which the agency relies.

ANALYSIS AND FINDINGS

Granting of the Agency's Request for Reconsideration
The previous decision based its reversal of the dismissal of the appellant's complaint on what it deemed to be the holding of a recent Commission decision, Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996), i.e., that a complainant states a claim where he or she has alleged "harassment" because of a protected basis (race, sex, national origin, color, religion, age, or disability). As discussed further below, the previous decision may have drawn its interpretation of the holding of the Osborne decision from two statements contained in that decision. However, the actual holding of the Osborne case is discerned by examining the specific complaint allegations which the Commission found to be sufficient to state a claim.

Ms. Osborne alleged that the agency discriminated against her based on her sex (female) when, on October 19, 1994, at the conclusion of a meeting, her supervisor placed his hands on her shoulders, turned her around, and stated that she could not leave without shaking hands with him. Ms. Osborne also alleged that her supervisor's actions were directed at her because of her sex and that his "physical aggression, intimidation and unequal treatment constituted harassment based on sex . . . ." The Commission found that a fair reading of Ms. Osborne's allegations was that she alleged discrimination based on her sex when, on October 19, 1994, "her supervisor harassed her and created a hostile and abusive work environment through unwelcome physical contact."Thus, the holding in the Osborne case was that a complaint which alleges a single incident of unwelcome physical contact, which was perceived by the complainant as physical aggression, intimidation and unequal treatment based on sex, was sufficient to state a hostile or abusive work environment claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

The Osborne holding was consistent with the Commission's prior decision in Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993), upon which the Osborne decision relied as setting forth the appropriate standard for determining whether a complaint states a claim. Ms. Lee alleged in her complaint that an agency official harassed her on the basis of her sex (female) when he entered her case, which was not big enough for two people, and started to rub his chest against her arm and shoulder, causing her to leave. In her statement to an EEO counselor, Ms. Lee also alleged that the agency official started to talk in her left ear while pressing his chest against her. Shortly after the incident, Ms. Lee wrote a letter to the agency's Postmaster wherein she alleged that the same agency official was continually harassing her, yelling at her, and creating an intimidating, hostile and offensive work environment for her. Ms. Lee filed a second allegation months later that the agency official had made an obscene gesture towards her. The Commission found that a fair reading of Ms. Lee's allegations was that she was alleging discrimination based on her sex (female) when the agency official harassed her and created a hostile and abusive work environment through unwelcome physical contact, gestures, and speech.

Thus, both the Osborne and the Lee decisions held, in effect, that a complaint of sex-based harassment which included an allegation of an unwelcome physical touching stated a hostile or abusive work environment claim under Title VII.

Similarly, in determining whether a harassment complaint states a claim in other 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 allegations, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See, e.g., Miller v. United States Postal Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment was not sufficient to state a hostile work environment claim); James v. Health and Human Services, EEOC Request No. 05940327 (September 20, 1994) (insufficient facts alleged to state a discriminatory working environment claim under the standard enunciated by the Supreme Court); Fagone v. United States Postal Service, EEOC Request No. 05930026 (June 4, 1993) (allegations sufficient to state a hostile work environment claim based on reprisal); and Angeli v. United States Postal Service, EEOC Request No. 05920342 (May 21, 1992) (allegations sufficient to state a claim of sexual harassment or sex-based harassment under the standard enunciated by the Supreme Court).

There is no indication in either the Osborne or the Lee decisions that the Commission intended to overrule, without discussion, this longstanding policy and practice of determining whether a complainant's harassment allegations were sufficient to state a hostile or abusive work environment claim. Indeed, the Lee case specifically indicated, when addressing the appropriate standard for failure to state a claim dismissals, that a working environment heavily charged with discrimination may, in and of itself, constitute an unlawful employment practice.

Consistent with the Commission's policy and practice of determining whether a complainant's harassment allegations are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. For example, the Commission held that allegations that supervisor had "verbally attacked" the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim. Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996). Similarly, the Commission has held that allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees, causing her embarrassment and humiliation, were insufficient to state a harassment claim. Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).

Also consistent with the policy and practice of determining whether a complainant's harassment allegations were sufficient to state a hostile or abusive work environment claim, 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 purposes of Title VII. For example, the Commission has held that a supervisor's remarks on several occasions, unaccompanied by any concrete action, were not sufficient to state a claim. Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996). In another case, the Commission held that an allegation, that on one occasion a supervisor questioned the complainant about his requested schedule revisions, did not state a claim. Henry v. United States Postal Service, EEOC Request No. 05940695 (February 9, 1995). Moreover, in the unusual case where the Commission has found that alleged remarks were sufficient to render an individual aggrieved for Title VII purposes, the Commission has based its holding on a description of the employee's work environment as a whole and not just on the alleged comments. See, e.g., Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996).

Given the Commission's long-standing policy and practice of considering the legal sufficiency of complainants' allegations of harassment, the Commission finds that the previous decision erred when it held that the appellant's complaint stated a harassment claim without addressing whether the appellant's allegations were sufficient to state a hostile or abusive work environment claim.

Failure to State a Claim Dismissals
The previous decision may have drawn its interpretation of the holding of the Osborne decision from two statements in that decision:
The agency's conclusion as to whether appellant's complaint meets the Commission's definition of sex-based harassment goes to the merits of her allegation rather than whether she has stated a claim. As long as she has alleged that she was harassed because of her sex, she states a claim under Title VII.

These statements indicate some confusion regarding the Commission's policy as to what agencies may consider when determining whether a complaint fails to state a claim.

The Commission has repeatedly reversed agencies' dismissals for failure to state a claim where the agency based the dismissal on its view of the ultimate merit of the complaint allegations. [FN3] The reason why an agency may not base a dismissal of an EEO complaint for failure to state a claim on its view of the ultimate merit of the complaint allegations is that, like motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint under 29 C.F.R. Part 1614 must be construed in the light most favorable to the complainant and its allegations must be taken as true. See Wright and Miller, Federal Practice and Procedure, Civil 2d §1357. Thus, all reasonable inferences that may be drawn from the complaint allegations must be made in favor of the complainant, although legal conclusions set forth in a complaint should not be given a presumption of truthfulness. See 2A James Wm. Moore, Moore's Federal Practice, 2d Ed., ¶12.07 at 12-84-85; Perkins v. Silverstein, 939 F.2d 463, 467-68 (7th Cir. 1991) (conclusory allegation that the plaintiff was the victim of sexual harassment not sufficient to state a claim). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Conley v. Gibson, 355 U. S. 40, 45-46 (1957).

The proper focus for dismissals of individual EEO complaints under 29 C.F.R. § 1614.107(a) is on whether the complainant is allegedly aggrieved due to an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act, as amended, 29 U.S.C. 791 et seq. See Hishon v. King & Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because Title VII's prohibition of discrimination with respect to an employee's "terms, conditions, or privileges of employment" includes benefits that are part of an employment contract and benefits which an employer chooses, but is not required, to provide its employees).

The question as to whether a complainant is allegedly aggrieved due to an unlawful employment practice for which there is a remedy under the Federal equal employment statutes, of necessity, requires a consideration of whether the complainant has alleged unlawful discrimination regarding hiring, termination, compensation, or other terms, conditions, or privileges of employment. Terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc. A complaint which alleges unlawful disparate treatment regarding a specific term, condition, or privilege of employment should not be dismissed for failure to state a claim. See, e.g., Miller v. Health and Human Services, EEOC Request No. 05950577 (April 4, 1996) (intense scrutiny of work products); and Brown v. Treasury, EEOC Request No. 05950415 (December 14, 1995) (type of assignments). However, even where a complaint does not challenge an agency action or inaction regarding hiring, termination, compensation or any other specific term, condition, or privilege of employment, the complaint may still state a claim if the complaint allegations are sufficient to state a hostile or abusive environment claim.

Hostile or Abusive Environment Claims
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21;114 S.Ct. 367, 370 (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. EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 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; 114 S.Ct. at 370; EEOC Enforcement Guidance at 3. 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 Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995), the Commission provided further guidance on determining whether alleged harassment was sufficiently severe or pervasive to alter the conditions of the complainant's employment:
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. [EEOC Enforcement Guidance at 6]. Even if the 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. Harris, [510 U.S. at 22;114 S.Ct.] at 371, EEOC Enforcement Guidance at 3, 6. When a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Harris, [510 U.S. at 21;114 S.Ct. at 370; EEOC Enforcement Guidance at 3.
To determine whether a work environment is objectively hostile or abusive, 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;114 S.Ct.] at 371; EEOC Enforcement Guidance at 4, 5. While the trier of fact should consider all relevant factors, no single factor is required to establish a hostile or abusive work environment claim. Harris, [510 U.S. at 23; 114 S.Ct. at 371]; EEOC Enforcement Guidance at 6.

The Commission has indicated its belief that the Harris decision applies to cases involving hostile or abusive environment harassment claims on the basis of age or disability as well as to hostile or abusive environment harassment on the basis of race, gender, religion, or national origin. EEOC Enforcement Guidance at 9.

As discussed above, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Thus, a claim of harassment based on the complainant's race, color, religion, sex, national origin, age, or disability, should not be dismissed for failure to state a claim where the complainant has made factual allegations which, when construed in the light most favorable to the complainant, i.e., when considered together and treated as true, are sufficient to state a claim: either (1) a claim of disparate treatment regarding hiring, termination, compensation or any other specific term, condition, or privilege of employment; or (2) a hostile or abusive work environment claim.

In addition, as indicated above, when addressing the merits of a hostile or abuse work environment claim, the trier of fact must consider all relevant factors since no single factor is required to prove a hostile or abusive work environment claim. Similarly, when considering whether a harassment complaint states a hostile or abusive work environment claim, the decision maker must consider all of the alleged harassing incidents and remarks. Moreover, a complainant is not required to use any specific words or phrases to state a hostile or abuse work environment claim. Instead, in order to state a hostile or abuse work environment claim, a complainant must alleged facts which, if proven true, would indicate that the complainant may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his or her employment.

The Appellant's Complaint
The appellant's complaint alleged that, based on his race, physical disability, and reprisal, at a meeting between agency officials and union leaders, an agency official referred to him as a trouble maker, stated that he was a bad union president, and indicated that he would not be allowed to return to the Police Unit because of his medical problems. Thus, notwithstanding the appellant's request contentions, in this instance the appellant's complaint merely challenged comments allegedly made at one labor-management meeting on July 6, 1995.

As indicated above, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action are not sufficient to state a claim. [FN4] Consistent with these decisions, the Commission finds that the appellant's complaint allegations regarding allegedly derogatory remarks, made at a July 6, 1995 meeting between agency officials and union leaders, are insufficient, without more, to state a claim under federal equal employment opportunity laws.

On appeal, the appellant represented that further investigation would reveal that the falsehoods were the merest tip of the iceberg of slander and libel that has been leveled against him since the time he began to participate in the equal employment arena. However, the Commission has held that an action for defamation per se, which does not affect the employment relationship, is not a claim of employment discrimination and, therefore, does not state a claim under 29 C.F.R. Part 1614. Henry v. United States Postal Service, EEOC Request No. 05940897 (May 18, 1995); accord Stoughton v. United States Postal Service, EEOC Request No. 05920894 (May 6, 1993) (an action for slander is outside the jurisdiction of the EEO process).

The previous decision found that the appellant had alleged that he was, and continues to be, subjected to "harassment" because of his race, physical disability, and in reprisal for his prior EEO activity. The Commission observes that the alleged statements at issue were not made directly to the appellant. Compare Fagone v. United States Postal Service, EEOC Request No. 05930026 (June 4, 1993) (allegedly an agency official on one occasion publicly stated that the complainant was not qualified to be a 204-B supervisor and accused him of stealing; on a second occasion publicly belittled him for incorrectly inserting a plug; was loud and abusive to him on a third occasion; and on a fourth occasion accused him of trying to demean the agency official in front of his superiors; and a second agency official allegedly threatened that the complainant's career would never advance if he filed an EEO complaint). Moreover, the alleged statements in the instant complaint did not involve remarks which could be characterized as indicative of intimidation because of use of the EEO process, ridicule, or insult. Compare Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (strikingly demeaning racial comments and use of a highly-charged racial epithet when referring to the complainant). The Commission finds that, accepting the appellant's complaint allegations as true, the allegations are not sufficient to indicate that the appellant may have been subjected to harassment that was sufficiently severe or pervasive so as to alter the conditions of his employment. Accordingly, it is the decision of the Commission to reverse the previous decision and to affirm the agency's dismissal of the appellant's complaint for failure to state a claim.

Multiple Complaints of Alleged Harassing Incidents/Remarks
In making the above finding, the Commission is mindful of the fact that the EEO Counselor's Report describes several prior complaints filed by the appellant, including at least four other instances of allegedly disparaging remarks. The Commission's records indicate that the Commission has upheld the dismissal of three of the appellant's EEO complaints for failure to state a claim. Appellant v. Department of the Treasury, EEOC Appeal No. 01962340 (November 6, 1996) (agency no. 96-2098) (a remark regarding the appellant's employment status allegedly made in his presence at a November 15, 1995 labor-management meeting), request for reconsideration pending; Appellant v. Department of the Treasury, EEOC Appeal No. 01961049 (October 30, 1996) (agency no. 96-2000) (allegation that on August 17, 1995, the appellant was initially directed to leave the agency facility which he was entering to meet with an EEO Counselor, but before he had left he was told that he did not have to leave); Appellant v. Department of the Treasury, EEOC Appeal No. 01960155 (September 6, 1996) (agency no. 96-2317) (allegation regarding a June 23, 1995 statement by a supervisor about the appellant's employment status which allegedly a co-worker overheard and thought was indicative of an agency conspiracy).

The Commission has considered the allegations contained in the three previously-decided cases (which involved allegations during the time period immediately preceding and following the instant case), to determine whether the allegations in the instant case, when viewed in light of the allegations raised in the other complaints, may be part of a pattern of allegedly derogatory remarks and treatment sufficient to state a hostile or abusive work environment claim. See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (Team Leader's prior history of making racially derogatory slurs and comments, and the workplace context, considered in the determination as to whether the specific complaint allegations were sufficient to state a hostile work environment claim); see also, Reda v. United States Postal Service, EEOC Request No. 05950934 (March 7, 1996) (remand for new agency determination where the Commission could not determine whether two allegations of harassment--which standing alone did not state a harassment claim--were sufficiently related to the appellant's 21 prior complaints to state a harassment claim). The Commission finds that even when considered in light of the appellant's other complaint allegations, the appellant's instant complaint allegations are not sufficient to state a hostile or abusive work environment claim. As indicated above, harassment is actionable as a discrete claim of employment discrimination only if, allegedly, the harassment is sufficiently severe or pervasive to alter the conditions of a complainant's employment.

The Commission observes that the agency properly was placed on notice by the EEO Counselor's Report that the appellant recently had filed several complaints regarding allegedly derogatory statements and actions within a period of several months. Apparently disregarding the EEO Counselor's Report, the agency chose to issue at least four separate final agency decisions dismissing the appellant's complaints for failure to state a claim. However, the character of the appellant's harassment allegations were such that the agency should have treated the multiple allegations of harassment in the appellant's separate complaints as one hostile work environment claim, and considered the alleged incidents as examples of the on-going hostile work environment to which the appellant allegedly was being subjected. Then, pursuant to 29 C.F.R. §1614.606, the agency should have consolidated the four complaints and any other of the appellant's complaints that included allegations of harassing incidents/remarks, and issued one final agency decision on the appellant's allegedly on-going hostile work environment claim. The agency's decision not to consolidate the multiple allegations of harassment into a single hostile work environment complaint has resulted in duplicative case processing work by the agency, the complainant's attorney, and the Commission which could have been prevented.

The Commission reminds the agency that it is required to ensure that its EEO Program, including its complaint processing operations, are operated efficiently. 29 C.F.R. §1614.102(a)(1). The Commission also advises the agency that it should consolidate complaints of discrimination filed by an individual complainant which raise allegations of harassing incidents or allegedly derogatory statements or remarks. Such consolidation will facilitate the agency's proper consideration of hostile or abusive work environment claims and, thereby, the conservation of limited administrative resources. The acceptance of hostile or abusive work environment claims for investigation, where allegedly the harassment to which a complainant may have been subjected could be sufficiently severe or pervasive to alter the conditions of the complainant's employment, will also help the agency to identify and eliminate discriminatory practices as required by 29 C.F.R. §1614.102(a).

CONCLUSION

After a review of the agency's request for reconsideration, the previous decision and the entire record, the Commission finds that the agency's request meets the criterion of 29 C.F.R. §1614.407(c)(2) and it is the decision of the Commission to grant the agency's request. The Commission's decision in EEOC Appeal No. 01960215 (September 24, 1996) is REVERSED, and the final agency decision is AFFIRMED. There is no further right of administrative appeal from the decision of the Commission on this request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court. 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. 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.

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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. The thirtieth day following the agency's receipt of the previous decision on September 27, 1996, fell on a Sunday October 27, 1996. Therefore, the agency's request for reconsideration was timely filed on Monday, October 28, 1996, the next business day. 29 C.F.R. §1614.604(d).

FN2. The Commission has affirmed the dismissal of three of the appellant's complaints, one of which is the subject of a pending request for reconsideration. The appellant also has three pending appeals.

FN3. See, e.g., Franz v. Treasury, EEOC Request No. 05950734 (April 29, 1996) (agency's argument that the complainant was not disparately treated went to the merit of his claim); Ernst v. Treasury, EEOC Request No. 05950131 (March 7, 1996) (the agency's argument that the denied detail was to a lower-grade position with fewer responsibilities and less opportunities for promotion went to the merits of the complaint); Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993) (agency wrongfully dismissed allegation of disparate treatment in the payment of licensing fees based on the ground that the agency could not pay an employee's licensing fees); Cann v. United States Postal Service, EEOC Request No. 05920861 (December 31, 1992) (agency wrongfully dismissed allegation that the agency failed to upgrade an employee to full-time regular status on the ground that there were no full time positions available to him under the terms of the collective bargaining agreement); Ferns v. Department of the Army, EEOC Request No. 05920597 (September 10, 1992) (agency's argument that the complainant was ineligible for position goes to the merits of the complaint).

FN4. Miller v. United States Postal Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment was not sufficient to state a hostile work environment claim); Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996) (supervisor's remarks on several occasions, unaccompanied by any concrete action, were not sufficient to state a claim); Henry v. United States Postal Service, EEOC Request No. 05940695 (February 9, 1995) (allegation, that on one occasion a supervisor questioned the complainant about his requested schedule revisions, did not state a claim); and Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (November 12, 1993) (allegation that supervisor told the complainant that he was wearing a "filthy" shirt and uniform did not state a claim).