0120092772
12-09-2009
Allan Goldstein, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Allan Goldstein,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120092772
Agency No. HS09ICE004307
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 18, 2009, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In his complaint, complainant alleged that he was subjected to ongoing
discriminatory harassment/hostile work environment on the basis of
religion (Judaism). As examples of the harassment, complainant alleged:
1. On February 9, 2009, complainant heard a coworker say to another:
"Heads up, Goldstein is in the building";
2. On February 17, 2009, complainant learned that a coworker (CW:
religion unknown) had referred to complainant as a "stupid Jew" or
"motherfucking Jew" and had not been disciplined for the statement;
3. On March 21, 2009, a management official (RMO: religion unknown) told
complainant that he "did not have a case" with regard to the February 17,
2009 comment; and
4. RMO failed to properly investigate the matter as an issue of a hostile
work environment.
The agency dismissed the matter for failure to state a claim, finding
that complainant was not aggrieved and that the actions were not so
severe or pervasive as to state a claim of hostile work environment
based on religion. The instant appeal followed.
In considering whether any of the above actions, whether individually
or collectively, constitute harassment, the Commission notes that in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), that harassment is actionable if it is sufficiently severe
or pervasive that it results in an alteration of the conditions of
the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected to
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct "must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive,
and . . . that the victim in fact did perceive to be so." Id. See also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001).
We note initially that the second incident contains an explicit reference
to complainant's religion. Furthermore, the statement was not a general
statement made in the abstract against all members of complainant's
religion by someone who did not know complainant. Instead, the person
uttering the statement was specifically referring to complainant and
his religion. Moreover, the fact that the remark was not specifically
directed toward complainant is not dispositive in determining whether a
viable claim has been alleged. See Barber, Eley, Powell, and Johnson
v. Department of the Navy, EEOC Request Nos. 05A50657, 05A50771,
05A50972, 05A50973.
In addition, we note that complainant states that he feels that RMO
is biased against him for failing to fully investigate the matter as a
hostile work environment matter. On appeal, complainant explains that
"Federal Law Enforcement officers depend on each other to back and protect
one another in dangerous, even life threatening situations." Appellate
Brief, p. 2. Complainant says that the comments and the indifference
of some colleagues and management to the comments make it difficult
for him to trust his life to his colleagues and thus create a hostile
work environment. See id, p. 3-4. Given the above, we find that
the allegations presented, as a whole, state a claim of hostile work
environment based on religion.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency
for further processing in accordance with this decision and the Order
below.
ORDER (E0408)
The agency is ordered to process the remanded claim (hostile work
environment) in accordance with 29 C.F.R. � 1614.108 et seq. The agency
shall acknowledge to the complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
December 9, 2009
__________________
Date
2
0120092772
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092772