0120063976etal
11-06-2006
John T. Kaplun, et al., [1] Complainants, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
John T. Kaplun, et al., [1]
Complainants,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal Nos. 0120063976, 0120064106, 0120064107, 0120064108,
0120064109, 0120064110, 0120064354,
0120064347 and 0120064425[2]
Agency No. 200620287FAA01, et al.
DECISION
Complainants filed timely appeals with this Commission from the agency's
decisions dated May 25, 2006, and June 20, 2006, dismissing their
complaints 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, as amended, 29
U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. In their complaints,
complainants alleged that they were subjected to discrimination on the
bases of race (Caucasian), color (white), age, and reprisal. Some
complainants also raised claims of disability.
The complainants allege the discrimination occurred when they were
terminated from their positions as air traffic controllers, and when the
agency failed to comply with the terms of a Stipulated Award fashioned as a
result of the settlement of an arbitration, filed in September 2005, over
their terminations. Following the arbitration over their terminations,
complainants were reinstated to their positions as a result of the
Stipulated Award. In their EEO complaints, complainants have also raised a
claim of the existence of a discriminatory and/or retaliatory hostile work
environment since their return to work in December 2005. In January 2006,
the parties contacted an agency EEO counselor over these same matters. In
February 2006, they then filed a second grievance regarding non-compliance
with the arbitration Stipulated Award. Finally, in May 2006, they filed in
formal EEO complaints at issue in this appeal.
The agency dismissed the EEO complaints because the complainants had
previously filed grievances on the same matters under a negotiated
bargaining agreement which allowed for claims of discrimination to be
raised.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
Here, the record shows that complainants filed grievances concerning their
termination and the agency's failure to comply with the arbitration award
resulting from their settlement agreement. Additionally, the record shows
that under the terms of the agency's collective bargaining agreement,
employees have the right to raise matters of alleged discrimination under
the statutory procedure or the negotiated grievance procedure, but not
both. As the record indicates that complainants elected to pursue the
matter within the grievance procedure, we find that the agency properly
dismissed the EEO complaints pursuant to 29 C.F.R. � 1614.107(a)(4). The
complainants argue that they did not raise discrimination in their
grievances. However, the fact that they chose not to raise their
discrimination claims in their grievances does not mean that they can now
bifurcate their claims and also file EEO complaints on the same matters.
Finally, the Commission notes that it has no jurisdiction to enforce the
terms of a Stipulated Award resulting from a settlement agreement made
within the negotiated grievance process.
With respect to the claims of hostile work environment, the Commission
notes that the agency did not address these claims in its dismissal
decisions. In determining whether a harassment complaint states a claim in
cases where a complainant has not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission has
repeatedly examined whether a complainant's harassment claims, when
considered together and assumed to be true, were sufficient to state a
hostile or abusive work environment claim. See Estate of Routson v.
National Aeronautics and Space Administration, EEOC Request No. 05970388
(February 26, 1999).
Consistent with the Commission's policy and practice of determining whether
a complainant's harassment claims are sufficient to state a hostile or
abusive work environment claim, the Commission has found that claims of
involving isolated incidents of alleged harassment usually are not
sufficient to state a harassment claim. See Phillips v. Department of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v.
Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are generally not a direct and
personal deprivation sufficient to render an individual aggrieved for the
purposes of Title VII. See Backo v. United States Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to be
hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a Title VII
cause of action if the discriminatory conduct was so severe or pervasive
that it created a work environment abusive to employees because of their
race, gender, religion, or national origin. Rideout v. Department of the
Army, EEOC Appeal No. 01933866 (November 22, 1995) ( citing Harris v.
Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration
denied EEOC Request No. 05970995 (May 20, 1999). Also, the trier of fact
must consider all of the circumstances, including the following: the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23. A review of all of the records herein indicates
that the complainants primarily complained of "nasty" comments made or
heard regarding their removals, as well as difficulty in the restoration of
their benefits which were lost as a result of their termination. As such,
the Commission finds that the comments proffered by the various
complainants are insufficient to rise to the level of actionable
harassment. Moreover, the issues concerning restoration of their benefits
will presumably be addressed in the grievance they filed in February 2006
concerning compliance with the arbitration award.
The agency's final decision to dismiss the EEO complaints in each of these
cases is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
November 6, 2006
__________________
Date
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[1] Pursuant its authority under 29 C.F.R. � 1614.606, the Commission
consolidates these nine appeals. The other complainants are John E. Smith,
Kent M. Mitchell, John A. Landi, Robert Serviss, David B. Mangene,
Christopher Piccola, Peter Wong, and Thomas Fitzgerald .
[2] Due to a new Commission data system, these cases have been redesignated
with the above-referenced appeal numbers.