0120091363
07-07-2009
Joe DeLeon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joe DeLeon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091363
Agency No. 200P-0691-2008103559
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated January 5, 2009, 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.
In his complaint, complainant alleged that he was subjected to sexual
harassment discrimination based on his sex (male) when:
1. on May 20, 2008, male co-worker 1 came up behind him and touched him
inappropriately on the back of his upper leg, and
2. on May 23, 2008, co-worker 1 insisted that complainant talk to him,
and physically prevented him from closing his door.
Complainant wrote in his complaint that co-worker 1 came up behind him and
slid his hand across his "left upper leg very upper from left to right."
The second incident occurred when co-worker 1 allegedly tried to apologize
to complainant and he did not want to speak to co-worker 1.
The FAD dismissed the complaint for failure to state a claim. It reasoned
that these were two isolated incidents that were not sufficiently severe
or pervasive to rise to the level of actionable harassment.
On appeal, complainant contends that co-worker's 1 harassment against him
continues. He submits a statement by co-worker 2 dated January 28, 2009.
According to co-worker 2, when he asked co-worker 1 if complainant was
in the office, co-worker 1 got upset and replied "I don't want to talk
to that faggot." In opposition to the appeal, the agency argues that the
later incident allegedly occurred more than three months after complainant
filed his complaint, and complainant does not contend it was made to
him or in his hearing. It argues that the FAD should be affirmed.
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. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
We find that incident 1 is not sufficiently severe to rise to the level
of actionable harassment. Complainant contends that co-worker 1 touched
him on the back of his upper leg, not the inside of the leg, which would
be significantly different. While this touching was offensive because
it was unwelcome or not taken as a joke by complainant, this isolated
incident of touching does not rise to the level of actionable harassment.
The second incident is about co-worker 1's zealous attempt to apologize to
complainant, and his refusal to accept the apology. The third incident,
which occurred several or more months later and was raised on appeal,
concerns co-worker 1 angrily calling complainant a faggot and saying he
did not want to talk to him when co-worker 2 inquired if he was inside
the office. We find that all these incidents, taken together, are
insufficiently pervasive or severe to rise to the level of actionable
harassment. While incident 1 was offensive, incident 2 was a rebuffed
attempt to apologize and incident three signified, in off-color terms,
co-worker 1's wish to avoid complainant. Incidents 2 and 3 are not a
continuation of incident 1.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
July 7, 2009
__________________
Date
2
0120091363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091363