0120170924
04-05-2017
Filiberto H.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Filiberto H.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170924
Agency No. DON16-65923-02350
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 6, 2016, dismissing his complaint of unlawful employment discrimination.
BACKGROUND
During the period at issue, Complainant worked as an Equal Employment Opportunity Specialist at the Agency's Fleet Readiness Center East facility in Cherry Point, North Carolina. On November 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (African American), sex (male), disability, and in reprisal for prior protected activity.
In its final decision, dated December 6, 2016, the Agency determined that Complainant's complaint was comprised of the following claim:
Complainant was subjected to a hostile work environment by his second-level supervisor (S2) when [he was] denied the opportunity to attend training at the EEOC where [he was] scheduled to participate in the Basics of Management Directive 715 and Barrier Analysis courses in March 2016.
The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned that Complainant ultimately did attend the training courses at issue. Thus, the Agency reasoned that Complainant did not allege a harm or loss with respect to a term, condition, or privilege of employment.
The instant appeal followed. On appeal, Complainant asserts that the Agency's final decision dismissing his complaint should be reversed. Complainant states that while he ultimately attended the trainings in question, it was only because another co-worker was unable to attend because of medical reasons. Complainant reiterates that he was initially denied these trainings. Complainant further asserts that initially being denied these training courses was only one of numerous incidents comprising his hostile work environment claim.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the Agency improperly framed Complainant's claim. When viewing Complainant's formal complaint in conjunction with the EEO Counselor's Report, Complainant is alleging a hostile work environment comprised of numerous incidents. Complainant is alleging that he was subjected to a hostile work environment when S2 initially denied his training request for two courses at the EEOC in March 2016,2 S2 repeatedly challenged every training request he submitted, he received his promotion to a GS-9 and was placed at a lower salary than was recommended (Step 1 rather than Step 5), S2 did not place in his personnel file a copy of his 2014 performance review which was favorable, S2 verbally threatened to remove him, S2 referred to him as a "angry black guy", and that S2 blocked him from being placed in the Complaints Manager position (which was a GS-12 promotional opportunity).3
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Upon reviewing the alleged incidents set forth above collectively, we find that Complainant has set forth an actionable claim of harassment.
To the extent the Agency is asserting that the initial denial of Complainant's request for training should be dismissed for failure to state a claim because he ultimately attended the EEOC trainings in question, we find that this matter is more properly analyzed as to whether this matter has been rendered moot.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in a complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
Complainant alleges that S2 repeatedly challenges his training requests. Under these circumstances, the first prong of the mootness analysis has not been established as there remains a possibility that the alleged violation will recur. In addition, Complainant is seeking compensatory damages. Specifically, Complainant in his formal complaint is seeking $60,000. Therefore, should Complainant prevail on this matter, the possibility of an award of compensatory damages exists. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993). The Agency has not addressed Complainant's request for compensatory damages. Thus, we cannot conclude that all the effects of the alleged discrimination have been eradicated.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0610)
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note Complainant's claim that his request to attend EEOC training was initially denied can be analyzed under both a disparate treatment analysis and as part of a hostile work environment analysis. We note that these are two theories of discrimination.
3 We note that these alleged incidents are merely a partial listing of the matters set forth in the EEO Counselor's Report.
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