0120141024
06-19-2014
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120141024
Agency No. 2013-24952-FAA-01
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 12, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist at the Agency's Potomac Consolidated TRACON facility in Warrenton, Virginia.
On April 27, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when:
1. From May 2009 to November 2011, Complainant's female co-worker (CW) has filed three hostile work environment claims against him.
2. In February 2011, he filed an Accountability Board complaint.
3. In October 2012, Complainant bid on a particular shift schedule and the CW was granted the same schedule placing her on the same shift. In effect, management forced him to work with the CW.
The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant failed to show that he was aggrieved by the complaints filed by the CW. In addition, the Agency dismissed claim (2) stating that Complainant was using the EEO process to collaterally attack another forum's procedure. The Agency then dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant was placed in the same shift as the CW in October 2012. However, the Agency found that the trigger occurred in October 2012, not in December 2012, when he received a response to a memo requesting a reassignment of the CW or space to avoid contact with her.
Complainant appealed the Agency's decision. On appeal, Complainant argued that he was subjected to harassment resulting in a change to his working condition, loss of premium pay and use of annual leave. As to the issue of timeliness, Complainant argued that he asked the Agency to remove the CW in November 2012, and that request was denied in December 2012. He argued that his contact was within 45 calendar days of the denial date. Therefore, the Agency's dismissal was not appropriate.
ANALYSIS AND FINDINGS
A fair review of Complainant's formal complaint showed that he asserted a single claim that the Agency failed to protect him from harassment by the CW, not three claims as identified by the Agency. In support of his claim of harassment, Complainant alleged that the CW has filed three hostile work environment claims against him. Complainant tried to have management address the situation but when the Agency did not respond, he had to file with the Agency's Accountability Board. In October 2012, Complainant and the CW entered a shift change that resulted in the two of them being forced to work with each other. As such, Complainant requested in November 2012, that the Agency move the CW. On December 26, 2012, Complainant's request was denied.
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of Complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We note that the complaint at hand involved a single claim of harassment. In his complaint, Complainant indicated that he requested that the Agency to have the CW removed from the workplace, not Complainant. Further, Complainant failed to explain what the CW has done to create a hostile work environment beyond the CW's filing of her own complaints of harassment against Complainant from May 2009 through November 2011. We find that Complainant's allegations are insufficient to state a claim of a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the compliant as a whole.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 19, 2014
__________________
Date
2
0120141024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141024