0120162003
11-04-2016
Jeramy C.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeramy C.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162003
Agency No. 160608A00640
DECISION
Complainant timely appealed to this Commission from the Agency's April 26, 2016 dismissal of 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., Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq. 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Dental Laboratory Technician (GS-08) at the Washington Navy Yard Health Clinic in Washington, DC.
On March 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment based on his race (African American), color (Black), national origin (African American), disability (disabled veteran, anxiety, depression, physical impairments arising from diabetes and heart disease), sex (Male), age (55), and reprisal for prior protected EEO activity (Agency No. DON130023103446) when:
1. On November 23, 2015, he became aware that his "character was assassinated" by his second level supervisor ("S2"), when she sent a Memorandum for the Record dated January 8, 2015 to the Agency's Assistant Counsel ("AC"), which included negative remarks and comments regarding Complainant's behavior;
2. In August, 2015, he received an improperly completed initial Performance Appraisal Review System (PARS) from his first level supervisor ("S1");
3. On July 1, 2015, he was given a direct order by his former second-level supervisor ("S2"), to not record any conversations within the Clinic, and was denied his right to have a Union Representative present for the meeting;
4. For the rating periods form approximately 2010 through mid-2015, he has not received any time off awards or cash bonuses despite receiving "acceptable" ratings on all of his PARs for the same period;
5. On November 26, 2014, Complainant was erroneously reported as delinquent on a training list even though he already completed the training, causing him to respond in an allegedly unprofessional manner toward a military staff member.
During the relevant time frame, Complainant had three different supervisors; all white women between the ages of 39 and 45 years old with no identified disability or prior EEO activity. All three were aware that Complainant previously filed an EEO complaint which he withdrew after entering into a global settlement agreement ("the MSPB Agreement") on May 19, 2014, with the Agency through the Merits Systems Protection Board ("MSPB"). Per the MSPB Agreement, Complainant, who had been separated from his position as a Dental Laboratory Technician, was reinstated. In exchange, among other things, Complainant agreed, under Provision 7(d) of the MSPB Agreement to "abstain from engaging in insubordinate and disruptive behavior in the workplace." Complainant alleges that since his return, he has been repeatedly singled out and bullied as retaliation for his prior EEO activity and as the only African American male in a para-professional position in an office with all white management.
On November 26, 2014, a military staff member who was responsible for keeping training records, notified S2 that that Complainant waived his finger in his face and yelled at him when he (erroneously) informed Complainant that he was on the list of employees who still needed to complete a training course. A coworker also overheard Complainant speaking loudly in an argumentative tone. S2, believing Complainant may have breached Provision 7(d) of the MSPB Agreement, consulted with the Human Resources Specialist ("HR") who was a party to the MSPB Agreement as the Agency's representative. In turn, HR spoke with Agency Counsel ("C1"), who had also been involved with Complainant's case. C1 determined that Complainant's conduct was not so severe that it violated Provision 7(d). However, HR found Complainant's behavior "unprofessional and inappropriate" and recommended that S2 address it. S2 met with Complainant on December 4, 2014, and submitted a Memorandum for the Record dated January 8, 2015. S2 also drafted a "pre-action report" and in July 2015, issued Complainant a non-disciplinary letter of caution concerning the November 26, 2014 incident.
In the Memorandum and the "pre-action" which would be used for an investigation, S2 states she felt uncomfortable around Complainant during the December 4, 2014 meeting because he raised his voice and pointed at her. She relayed Complainant regularly acts "aggressive" and "confrontational" toward supervisors and other employees. She also stated that Complainant revealed he was recording their conversations, which made her uncomfortable, and she instructed him not to. Complainant alleges that S2 showed no sign of discomfort during the December 4, 2015 meeting, that he did not raise his voice, and that he had a right to record all one on one conversations in which he is a party.
He further alleges that his supervisors single him out by using incidents that appear to be administrative errors as a way to harass and bully him. Out of two possible ratings, "acceptable" and "unacceptable," Complainant received "acceptable" on all of his core position requirements listed in his PAR for the past five years, yet he alleges that unlike his peers, he has not received time off or cash awards for this achievement. He argues that the November 26, 2014 incident is one of multiple incidents where he has been erroneously identified as having not completed training, despite previously printing and providing the completion certificates. Complainant notes he has held the position of Dental Laboratory Technician for eight years, and it is properly written on his past PARs, yet his 2015 identified his title as "Dental Assistant" and provided erroneous details on his position description. He alleges that S2 took over a month to make the corrections, even though his peers were not subjected to such a delay.
The Agency dismissed Claim 1 in accordance with 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, and dismissed Complainant's remaining claims pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely contact with an EEO Counselor.
ANALYSIS AND FINDINGS
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 (Apr. 21, 1994). If complainant cannot establish that he or she 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 the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are insufficient to state a claim of a hostile work environment.
Claim 1
Claim 1 references S2's act of "character assassination" against Complainant in the Memorandum for the Record detailing the November 26, 2014 training incident. To the extent that Complainant alleges that S2's comments within the Memorandum are themselves harassment; 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 purposes of Title VII. For example, the Commission has held that a supervisor's remarks on several occasions, unaccompanied by any concrete action, were not sufficient to state a claim. See Backo v. United States Postal Serv., EEOC Request No. 05960227 (Jun.10, 1996). In another case, the Commission held that an allegation, that on one occasion a supervisor questioned the complainant about his requested schedule revisions, did not state a claim. Henry v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). In the instant case, S2's comments within the Memorandum are unaccompanied by a concrete agency action, as neither the Memorandum, nor the "pre-investigation" and July 1, 2015 Letter of Caution associated with the Memorandum, are disciplinary actions that could impact Complainant's employment. Hence Claim 1 fails to establish Complainant is aggrieved, and fails to state a claim.
Within the context of a harassment claim, we have previously found that in the unusual case where the Commission has found that alleged remarks were sufficient to render an individual aggrieved for Title VII purposes, the Commission has based its holding on a description of the employee's work environment as a whole and not just on the alleged comments. See, e.g., Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (Jun. 25, 1996). Having thoroughly reviewed the record, and considering Complainant's claim as a whole he has not shown that the alleged discriminatory acts have created a work environment so hostile as to constitute harassment. The Agency's dismissal of Claim 1 for failure to state a claim, and finding of no harassment was proper.
Claims 2, 3, 4, and 5: Untimely EEO Contact
Under 29 C.F.R. �1614.107(a)(2), the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the Commission may extend the time limit if complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The latest of the alleged discriminatory events occurred in August 2015, but Complainant did not initiate contact with an EEO Counselor until December 2015, which is beyond the 45 day limitation period. Complainant did not provide a sufficient explanation for the delay on appeal. We find Claims 2, 3, 4, and 5 properly dismissed as untimely. Alternately Claim 3 fails to state a claim on jurisdictional grounds, discussed below.
Clarification on EEOC Jurisdiction
In Claim 3, and throughout his appeal, Complainant alleges that his "constitutional right to record one-on-one conversation" was violated, citing federal, Virginia, and Washington, D.C. statutes for support. The Commission's regulations do not provide it with jurisdiction to decide matters involving these laws or any other wiretapping laws. The proper forum for Complainant to have raised his challenges may be found within the language of the statutes. Claim 3 also alleges that Complainant was denied Union representation, in violation of his Weingarten Rights, during the July 1, 2015 meeting with S2 and other management officials. This too is beyond the scope of EEOC jurisdiction. The proper forum to raise a claim regarding a violation of Weingarten Rights is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002).
On the topic of jurisdiction, we note that on appeal, Complainant repeatedly raises multiple issues that can only be addressed by the MSPB. For instance, Complainant's request that his complaint "go back to the administrative judge," as a reference to the MSPB proceeding that led to the MSPB Agreement discussed above must be raised with the MSPB, and cannot be resolved by this Commission. Likewise, and, as the Agency aptly provided in its opposition statement, we cannot issue decisions on allegations involving a possible breach of the MSPB Agreement because it would constitute a collateral attack on an MSPB proceeding. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (Jul. 15, 1994) (finding that a "collateral attack, by definition, involves a challenge to another forum's proceeding" and cannot state a claim of discrimination). To the extent Complainant is alleging that the Agency breached the MSPB Agreement, we have previously found that the proper forum for a claim of noncompliance with an MSPB settlement agreement is not this Commission, but rather the MSPB itself. See Gilmore v. United States Postal Serv., EEOC Appeal No. 0120043520 (Mar. 17, 2005).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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:
______________________________ signature
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 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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