0120083818
02-06-2009
Andre P. Mixon, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Andre P. Mixon,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083818
Agency No. ARFTHUA08JUN02540
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 6, 2008, 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.
On July 28, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to a hostile work
environment on the bases of race and in reprisal for prior protected
EEO activity when:
a. on July 6, 2008, he discovered that Vacancy Announcement Number
WTEJ08788121, Basic Life Support/HAZMAT Technician, submitted by
[identified Chief, Fire Prevention Protection Division], including a
statement regarding "the incumbent must reside within 45 minutes driving
distance to Fort Huachuca" that he allege precludes him from consideration
for the position;
b. on June 25, 2008, he learned from a co-worker that his Fire Fighter's
1 & 2 certificates from a named college, and that of co-worker had been
paid for by [identified Acting Fire Chief] who has since retired; yet,
he had to pay for his own certificates from a different named college
in September 2005;
c. on June 24, 2008, he was prevented from driving to the Crash 30
vehicle by [identified Lt, Lead Firefighter (L1)] and told to only to
drive the Hummer;
d. on June 24, 2008, he was told by [Assistant Chief] that "when
[identified Chief] talks, it is not comedy hour," after complainant had
raised his hand during a training exercise and commented that most of
the Firefighters had not yet been born when [identified Chief] made a
reference to a 1988 terrorist incident;
e. on June 23, 2008, L1 told him, "...guess this is your boy's big
day," referencing a former co-worker's investigation conducted by the
Investigation Resolution Division (IRD); and
f. on June 23, 2008, L1 asked him if he was "getting a cut of it,"
referring to a former co-worker's IRD investigation.
Complainant further alleged that he was subjected to "ongoing pattern
of racial tensions and belittlement by [L1]. I have addressed his
behaviors and comments with my supervisors (Caucasian), and I have also
submitted a formal, written request to be removed from his crew due to
his outrageously inappropriate behavior. I am still on [L1's] crew."
Furthermore, complainant alleged that he believed this behavior was
directed at him not only because of his race "but also because I
participated in a formal EEO complaint as a witness for a former FHFD
employee."1
In its August 6, 2008 final decision, the agency dismissed the
instant complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. The agency noted that unless the conduct is severe,
a single incident or group of isolated incidents will not be considered
discriminatory harassment.
As a threshold matter, the Commission finds that the agency improperly
fragmented complainant's complaint in its final decision. A fair reading
of the record reflects that complainant raises a harassment/hostile
work environment claim. The matters identified in the agency's final
decision are incidents comprising complainant's harassment claim.
The agency improperly dismissed complaint for failure to state a claim.
Upon a review of the record, the Commission finds that the agency
improperly dismissed the complaint for failure to state a claim.
The record reflects that complainant has claimed that he has been
subjected to a hostile work environment when management included a
statement in a vacancy announcement that the incumbent must reside
within 45 minutes driving distance to the agency facility; paid for his
co-workers' Fire Fighter certifications while complainant had to pay for
his own certificates; prevented complainant from driving the Crash 30
even though he was certified to drive it; told complainant that when the
Chief talks, "it is not comedy hour" because he raised his hand during a
training exercise and commented on the Chief's statements; and L1 told
complainant "guess this is your boy's big day," referencing a former
co-worker's investigation and asked complainant if he was "getting
a cut of it." These matters state an actionable claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint, defined herein as a harassment claim, and we
REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall, to the extent practicable,
consolidate this complaint with complainant's other pending harassment
complaint for continued processing. 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 (15)
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 acknowledgement 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 (K0501)
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,
D.C. 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
February 6, 2009
__________________
Date
1 FHFD is an acronym for Ft. Huachuca Fire Department.
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0120083818
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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