01986205
10-19-2000
Charles C. Cox, Complainant, Richard J. Danzig, Secretary, Department of the Navy, Agency.
Charles C. Cox v. Department of the Navy
01986205
October 19, 2000
Charles C. Cox, )
Complainant, )
) Appeal No. 01986205
) Agency No. 9400197046
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination,
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 of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
This appeal is accepted in accordance with 29 C.F.R.
� 1614.405.
ISSUE PRESENTED
Whether complainant was harassed on the bases of age, disability, and
reprisal when personal information that he left in the library was not
promptly returned to him.
BACKGROUND
Procedural History
Complainant was employed by the agency as an Electronics Engineer,
GS-855-11, at the Naval Surface Warfare Center, Louisville, Kentucky.
He filed a formal complaint on July 18, 1994 alleging discrimination on
the bases of age (DOB: July 31, 1946), disability (pulmonary disorder;
depression; and Learning Disorder Factor), and reprisal (prior EEO
activity) when he left personal information in the Technical Library
that was not promptly returned to him. Complainant alleged that the
fact that his personal information was not given directly back to him
constituted harassment. He argued further that this action resulted
in a violation of his right to privacy, that the agency's training in
protecting personal information was ineffective, and that an unnamed
individual maintained an unauthorized and unofficial file of said
personal information. Complainant asked for and then withdrew his request
for a hearing. The agency issued its FAD, finding no discrimination.
Complainant's appeal followed.
Factual History
The record shows that, around May 1994, complainant had been in the
technical library during an afternoon using one of the computer work
stations. After he left the library, one of the Library Technicians
(LT-1) found material in the printer, which highlighted ways to document
an EEO case against individuals. LT-1 collected these pages and kept
them at her desk because individuals would sometimes come back and
request information they had left in the library. LT-1 stated that the
next morning, when the Library Supervisor (LS-1) came through, she felt
that she needed to show the material to him. She stated that she did not
want any library customers using the library as a personal research center
since it was a public center for technological research only. The record
shows that since complainant did not return for the information, LT-1
turned it all over to her supervisor, LS-1. LT-1 stated that she did
not allow anyone other than her supervisor to see the information,
nor did she make copies of or divulge the information to anyone else.
LT-1 also stated that, over a period of time, complainant began using
the computer and the printer for such an extended period of time that
she mentioned it to LS-1. She found out through LS-1 that complainant
had not been assigned any projects which required him to do research in
the technical library. She also pointed out that for several months
prior to her retirement, complainant was in the library almost every
day for the entire day.
LS-1 confirmed this statement, and stated that he received complaints from
other library patrons that complainant's use of the computer station was
denying computer access to individuals who needed to use the computer.
When LS-1 asked complainant why he was spending so much time on the
computer, complainant replied that he was trying to teach himself how to
use the equipment. LS-1 advised complainant that the equipment was for
official use only and to arrange for such training with his supervisor
(S-1). LS-1 stated that he did not maintain any unofficial file of
complainant's personal information.
LS-1 gave the information to the Program Manager, (PM-1), who was
his supervisor. PM-1 noted that the information was not work related
for any organization and thus he could not identify whose it was.
PM-1 stated that he asked his supervisor and the supervisory EEO
specialist what he should do with the information and asked one of
complainant's supervisors whether complainant had mentioned that he
was missing something from the library, which complainant had not done.
The supervisory EEO specialist told PM-1 that complainant had contacted
him about the missing information, which PM-1 told the specialist
was still in his possession. PM-1 turned the material over to the
supervisory EEO Specialist. PM-1 further stated that he did not maintain
an unauthorized or unofficial file of complainant's personal information.
S-1 commented that complainant was paid out of an account to work
on the MK75 project, and was not being paid to research EEO cases,
using government equipment on government time to do so. Moreover, he
indicated that, when the material was found in the library, complainant
had not requested official time to work on EEO Cases. S-1 corroborated
the fact that complainant spent a lot of time in the library doing work
unrelated to his job function. He had advised complainant on several
occasions that he was spending too much time in the library and finally
he and complainant's second level supervisor gave complainant a direct
order to limit his time in the library, and to work on his assigned task.
Complainant asserts that the material should have been promptly
returned to him, or at the very least given directly to the EEO office
at his agency. He maintains that his right to privacy was violated when
the librarians kept his information and then gave it to his supervisor.
He believes that the agency's training in protecting personal information
was ineffective, and further that an unnamed individual maintained an
unauthorized and unofficial file of his personal information.
ANALYSIS AND FINDINGS
The Commission finds that complainant has not established that he was
harassed by the agency when his personal material was not promptly
returned to him. It is well-settled that harassment based on an
individual's age, disability, and prior EEO activity is actionable. See
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant must
show that: (1) he belongs to the statutorily protected classes, and he
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct
related to his membership in those classes, and his prior EEO activity;
(3) the harassment complained of was based on age, disability, and
reprisal; (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 Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994). If the complainant satisfies
the five elements, then the agency is subject to vicarious liability
insofar as the harassment would have been "created by a supervisor with
immediate ... authority over the [complainant]." Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999), at 4 (citing Burlington Industries, Inc.,
v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<2>
Complainant has not established a prima facie case of harassment.
Assuming arguendo, under prong (1) of the test above, complainant has
demonstrated membership in the protected classes that he identifies, and
has shown that he filed a prior EEO complaint, he has not demonstrated,
under prongs (2) and (3) of the test above, that the conduct by agency,
discussed in this complaint, was related to his age, disability,
or prior EEO activity. The record shows that the librarians did not
promptly return complainant's material because they were unsure to whom
it belonged. The record also shows that complainant did not have a right
to privacy with respect to the material because it was generated during
work time with the use of government property, and not on official time.
See EEOC- Management Directive (MD) 110, 6-15 to 6-17 (November 9, 1999).
Further, there is no evidence in the record that an unauthorized and
unofficial file was kept of complainant's information, or that the
agency's training in protecting personal information was ineffective.
In addition, under prong (4), complainant has not demonstrated that the
incident complained of was severe or pervasive enough to interfere with
his work performance or to create a hostile work environment.
With respect to complainant's contention that his personal papers were not
returned to him in retaliation for engaging in previous EEO activity, we
note that, in Carroll v. Department of the Army, EEOC Request No. 05970939
(April 3, 2000), the Commission reaffirmed its policy of viewing reprisal
claims with a broad view of coverage. Citing EEOC Compliance Manual,
EEOC Order No. 915.003, "Retaliation," p. 8-15 (May 20, 1998), the
Commission, in Carroll, held that "[c]laimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment." Therefore, a complainant is protected from any
discrimination which is reasonably likely to deter protected activity. Id.
Based on our review of the record, we find no persuasive evidence that
the delay in returning the papers was intended to deter complainant from
engaging in any protected activity.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
10-19-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 When the harassment does not result in a tangible employment action,
the agency can raise an affirmative defense to liability which it
can meet by demonstrating: (a) that it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (b) that
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at 12. This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or reassignment) being taken against the employee. Id. at 7.