is the harassment against you significantly severe?
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. Dep’t of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). In addition,
the Commission has held further that where a complaint does not challenge
an agency action or inaction regarding a specific term, condition, or
privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions of
the complainant’s employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993).
Whether the harassment is sufficiently severe to trigger a violation of
EEO statutes 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 id.; Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Considering the incidents alleged in the light most favorable to the
complainant, we determine that complainant’s claim is insufficient to
state a claim of hostile work environment harassment. See Cobb v. Dep’t
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). However,
with that finding, we caution the agency regarding the appropriateness
of chain-of-command supervisors suggesting an employee retire. Further,
we find that the agency’s action of changing complainant’s start of duty
time does render complainant aggrieved and, thus, states a claim.
After a careful review of the record, we AFFIRM the agency’s final
decision dismissing complainant’s claim of hostile work environment
harassment and REVERSE and REMAND complainant’s claim regarding a change
in her tour of duty.
