0120141758
06-02-2016
Isaiah R.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isaiah R.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141758
Hearing No. 5520-2014-00182X
Agency No. NY130712SSA
DECISION
On April 9, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's March 13, 2014 final order concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative in the Agency's East Harlem District Office in New York, New York.
On September 3, 2013, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of sex (male) when:
1. on July 18, 2013, the District Manager gave Complainant administrative leave, and instructed Complainant to leave the work place because he was wearing shorts.
After the investigation, the Agency provided Complainant 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 12, 2014, the Agency submitted a motion for a decision without a hearing. Complainant did not submit a response to the Agency's motion.
On February 27, 2014, the AJ issued a decision without a hearing, essentially dismissing the complaint for failure to state a claim.
In reaching this decision, the AJ found the following facts, based on the evidence gathered during the investigation, were undisputed:
On July 16, 2013, Complainant arrived at work wearing shorts. Complainant was not sent home at that time because his work duties that day did not involve face-to-face interaction with the general public.
However, on July 18, 2013, Complainant again arrived at work wearing shorts. The District Manager informed Complainant that shorts did not comport with the expectations of professional attire that were required in the office. As a result, the District Manager ordered Complainant to return home and change into long pants, and granted administrative leave for Complainant to do so. The administrative leave excused Complainant without any loss of pay or charge to personal leave time.
Complainant alleged sex discrimination because female employees were not required to cover their legs when wearing dresses and skirts.
Based on these facts, the AJ determined that Complainant's discrimination complaint failed to state a claim. The AJ noted that the Commission has previously concluded that varying standards of dress as between male and female employee failed to state a claim under Title VII. The AJ also noted that Complainant was placed on administrative leave and suffered no economic loss or other harm as a result of being sent home.
On March 13, 2014, the Agency subsequently issued a final order, adopting the AJ's dismissal for failure to state a claim.
The instant appeal followed. Complainant contends that the AJ erred by finding that the dress code did not have an impact upon Complainant's terms of employment. Complainant asserts he was subjected to unwarranted criticism, condemnation and the inconvenience of travel in the middle of the day, in addition to restriction of his freedom of choice to dress as he pleased. Complainant contends that the Agency did not show that banning shorts was not pretext for discrimination, because female employees were allowed to wear dresses and skirts.
ANALYSIS AND FINDINGS
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the complaint may be dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission has previously held that varying standards of dress between working men and women fails to state a claim under Title VII. Platt v. United States Postal Service, EEOC Request No. 01981095 (1999). We note, moreover, that in this case, the District Manager attested that that if a female employee arrived at the office in shorts, she would have been similarly warned and then sent home to change.
In sum, the record does not show how Complainant was aggrieved, and the AJ properly dismissed this matter for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final order, implementing the AJ's decision dismissing the instant formal complaint for failure to state a claim.
Because we affirm the Agency's final order, we find it unnecessary to address its appellate argument that Complainant untimely filed the appeal.
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 (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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
June 2, 2016
__________________
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.
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