0120064823
05-15-2008
Garry D. Rissman, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Garry D. Rissman,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120064823
Hearing No. 520-2006-00081X
Agency No. TSAF-04-0909
DECISION
On August 25, 2006, complainant filed an appeal from the agency's July
19, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted for the Commission's de novo review pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a security screener at the agency's LaGuardia Airport facility in
Flushing, New York. On November 13, 2004, complainant filed an EEO
complaint alleging that he was subjected to harassment on the bases of
race (Caucasian), religion (Jewish), age (52), and sexual orientation
(homosexual) when:
1. Complainant was criticized and "attacked" for requesting too
many bag checks while stationed at the x-ray machine; being too thorough
and taking too much time when conducting a bag check and "wanding"
a male passenger; offering a passenger a private screening; being too
thorough with "ETD'ing" items and receiving too many ETD alarms; and,
wanting to do things "by the book" in the face of threats by passengers;
2. Complainant was escorted to another terminal;
3. A terminal manager referred to complainant as a "troublemaker"
and told him to leave the lane;
4. In a June 2004 incident, complainant was stalked by a U.S. Marshal
and the component refused to take action; and
5. The component filed an incident report over an altercation
between complainant and a lead screener.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On February 10, 2006, the agency motioned for a
decision without a hearing. Complainant did not submit a response to
the agency's motion. On May 22, 2006, the AJ issued a decision without a
hearing in which he found that complainant was not subjected to unlawful
harassment or discrimination. Specifically, the AJ first found that
complainant's sexual orientation claim does not state a claim under EEO
regulations. The AJ also found that the alleged actions do not state a
claim because they do not render complainant aggrieved and are not severe
or pervasive enough to constitute a hostile work environment. The agency
subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in finding that he was
not subjected to harassment and discrimination. Complainant also argues
that discrimination on the basis of sexual orientation is forbidden by
EEO regulations. Complainant further contends that he was subjected
to harassment because the agency constantly criticized him and falsely
claimed that he divulged sensitive security information in a "manifesto."
Complainant contends that the agency only cares about maintaining the
status quo and does not care about improving security. The agency
requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As an initial matter, we determine that the AJ properly concluded that
complainant's claim that he was subjected to discrimination and harassment
on the basis of sexual orientation fails to state a claim under EEO
regulations. Johnson v. USPS, EEOC Request No. 05910858 (December 19,
1991); Yost v. USPS, EEOC Request No. 05970940 (October 2, 1997).1
We further note that complainant has raised a claim of harassment,
comprised of several incidents of conduct by management and co-workers.
Therefore, we find that a harassment analysis is appropriate.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) he was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The conduct in question is
evaluated from the standpoint of a reasonable person, taking into account
the particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986).
In this case, we draw all justifiable inferences in complainant's favor as
we are required to do by the standards set forth in Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) and we have carefully considered
complainant's statements and descriptions of incidents in support of his
harassment claim. We conclude that, viewed together in the light most
favorable to complainant, these incidents are not sufficiently severe or
pervasive to have created a hostile work environment. See Cobb, supra.
In addition, we find that there is no evidence in the record that would
support a finding that management's actions towards complainant were
based on his race, religion, or age.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, we affirm the agency's final order for the reasons set forth
in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_May 15, 2008_________________
Date
1 However, we note that Executive Order 13987 (May 28, 1998)
requires federal agencies to establish an internal redress
procedure for complaints of sexual orientation discrimination
by civilian employees. Such complaints are investigated by the
Office of Special Counsel. See 5 U.S.C. � 1214, et seq; Office of
Special Counsel Results of Legal Review of Discrimination Statute,
http://www.osc.gov/documents/press/2004/pr04_03.htm (April 8, 2004).
??
??
??
??
2
0120064823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064823
6
0120064823