0120091720
06-10-2010
Christopher R. Howell, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Christopher R. Howell,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091720
Agency No. 086588802334
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 21, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to harassment on the bases of race (Caucasian), color
(White), and disability (back injury) when:
1. On July 14, 2008, complainant alleged that his first line supervisor
called security in order to embarrass him in front of his co-workers;
2. The supervisor deliberately failed to inform him to attend random
drug testing;
3. The supervisor directed complainant to notify the Machinist Leader
whenever complainant had to go to the restroom;
4. The supervisor directed a co-worker to check parts upon which
complainant was working with a micrometer in order to monitor the quality
of complainant's work;
5. The supervisor stated he was generally monitoring complainant's
activities closely;
6. The supervisor accused complainant of being disagreeable and
argumentative when complainant was discussing a work assignment with him;
7. Complainant alleged that the supervisor told complainant that he was
absent without leave (AWOL) for the rest of the day during a discussion
of time and attendance;
8. The supervisor complained loudly in front of co-workers that
complainant wasn't working to the supervisor's expectations; and
9. The supervisor discriminated against complainant regarding his
work injury.
The agency dismissed claims (1), (2) and (9) pursuant to 29 C.F.R. �
1614.107(a)(4) for raising the same matter in a grievance procedure.
As to the remaining claims (3) - (8), the agency determined that
complainant failed to state a claim. The agency indicated that
complainant failed to provide specific information to allow the agency to
conduct a meaningful investigation. As such, the agency determined that
these claims should be dismissed for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1).
Complainant appealed. Complainant asserted that claims (1), (2), and
(9) were not raised within the grievance process. As to claim (1),
complainant noted that it was not the same date as the event raised in
the grievance. As to the remaining claims, complainant provided dates to
the events raised in his complaint. In addition, complainant raised new
claims on appeal that were not previously raised as part of his complaint.
The Commission notes that these new claims were not previously raised.
It is inappropriate for complainant to raise these new claims for the
first time as part of his appeal.
The agency requested that the Commission affirm its dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning the matter identified in claim (1). We note that complainant
has not indicated that the supervisor called the Base Police on two
different occasions. Therefore, we are not persuaded by complainant
that the grievance and the EEO complaint involved two different events.
Additionally, the record shows that under the terms of the agency's
union agreement, employees have the right to raise matters of alleged
discrimination under the statutory procedure or the negotiated grievance
procedure, but not both. As the record indicates that complainant
elected to pursue the matter within the grievance procedure, we find
that the agency properly dismissed claim (1) pursuant to 29 C.F.R. �
1614.107(a)(4).
As to claim (2), we find that the agency has not shown that complainant
has filed a grievance regarding the supervisor's failure to provide
notice of a drug test. The grievance that the agency provided in
support of the dismissal states a claim regarding "DFWP Violation."
There is no clarification as to what "DFWP" stands for or its connection
to the notice of the drug test. As such, we find that the agency has
not supported its decision to dismiss claim (2).
Finally, as to claim (9), the agency provided a grievance filed by
complainant that the "supervisor failed to charge employee's 3 days at
home to treat his job-related injury to C.O.P." (continuation of pay).
We note that complainant failed to provide any specific information on how
the supervisor discriminated against him regarding his job related injury.
As such, we cannot find that claim (9) and the grievance pertain to the
same issue. As such, we cannot affirm the dismissal of claims (2) and
(9) pursuant to 29 C.F.R. � 1614.107(a)(4).
We shall now review the agency's dismissal of complainant's claim
of harassment pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In reviewing complainant's claim of harassment, we
not complainant provided events (2) - (9) in support of his claim.
Therefore, we shall consider these events as to complainant's claim
of harassment. The regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. 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. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: 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. Harris, 510 U.S. at 23.
We note that on appeal, complainant provided dates for the events which
complainant asserted constituted harassment. Complainant failed to
provide any more specific information beyond what he provided in his
formal complaint. Based on the events alleged taken as a whole, we
find that complainant failed to assert that the conduct was so severe
or pervasive to state a claim of harassment. Accordingly, we find that
complainant's claim of harassment is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint at hand.
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 (S0408)
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 (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
June 10, 2010
__________________
Date
2
0120091720
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091720