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Single Remark Can Justify Bias Claim

The EEOC recently reconfirmed that in certain circumstances a single, isolated remark forms the basis for an actionable harassment complaint. In the decision, Waleed M. Sharbini, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency, 110 LRP 52199 (August 20, 2010), the EEOC (the ‘Commission”) reversed the U.S. Air Force’s dismissal of Sharbini’s EEO complaint ‘for failure to state a claim,” and remanded to the agency for further processing.

The decision stemmed from an incident that took place on April 29, 2009, in a parking lot near complainant Sharbini’s office. Sharbini, a human resources assistant at an Air Force facility in Denver, had driven elsewhere to pick up a large number of pizzas for his office mates. Upon his return, an agency security manager asked Sharbini why he had parked his truck in that particular location. Sharbini explained the pizza run. The security manager then asked Sharbini if he were Palestinian, pointed to the Palestinian flag displayed in the complainant’s truck, and told him, ‘with everything going on, it does raise a red flag.” Sharbini protested that he resented the statement and that he was an American citizen and worked for the government.

According to the EEOC decision, ‘the security manager purportedly responded that although he did not ‘mean it like that,’ the flag in the truck did raise a ‘red flag’ and made people ‘concerned.'” Sharbini, who requested only equitable remedies of training and counseling ‘as preventive measures,” also ‘alleged that the security manager was unpleasant throughout this encounter,” and stated that ‘he was stereotyped as a terrorist threat because of his national origin and religion.”

The agency dismissed the case for failure to state a claim, but the EEOC reversed, holding that this incident was akin to those limited cases in which highly offensive slurs or comments about a federal employee’s race, color, national origin, religion or gender may in fact state a claim of discrimination under Title VII. Accordingly, the commission concluded that the complainant did state a viable claim which required further investigation and processing.