0120121565
08-07-2012
Jonathan T. Morris, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Jonathan T. Morris,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120121565
Agency No. HSTSA019272011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated January 10, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Expert Behavioral Detection Officer at the Agency's Los Angeles International Airport facility in Los Angeles, California. On November 4, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and color (medium) when:
1. On August 11, 2011, management issued Complainant a verbal discussion of instruction; and
2. In August 2011, management placed Complainant on a "watch list" of problem employees.
The Agency dismissed the claims for failure to state a claim, finding that Complainant was not aggrieved and that any harassment was insufficiently severe or pervasive to state a claim of hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency incorrectly analyzed his claims under a harassment theory and that his claims were claims of disparate treatment which the Agency failed to address. The Agency makes no argument on appeal.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under the EEOC regulations under either a disparate treatment theory or a harassment theory. With regard to harassment, we find that Complainant failed to show that he was subjected to unwelcome verbal or physical conduct involving his protected classes, that the harassment complained of was based on his statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With regard to disparate treatment, we note that 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). The Commission finds that neither being issued a verbal discussion of instruction nor being placed on a "watch list" result in a present harm or loss. Accordingly, we find that Complainant has not stated claims of disparate treatment with either allegation. Finally, we note that, contrary to Complainant's argument on appeal, the Agency's Dismissal analyzed Complainant's claims under both a harassment theory and a disparate treatment theory. Specifically, the Agency found that the "EEOC 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 the purposes of Title VII," Dismissal, p.2, which is sufficient to address whether or not Complainant states a claim under a disparate treatment theory. Complainant's arguments to the contrary are, therefore, without merit.
CONCLUSION
The Dismissal is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
August 7, 2012
__________________
Date
2
0120121565
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121565