0120091154
03-30-2009
Keith L. Willis, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Keith L. Willis,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091154
Agency No. HS08TSA006086
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 9, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
At the time of the events at issue, complainant was employed by
the agency as a Federal Air Marshal in Philadelphia, Pennsylvania.
Complainant contacted an agency EEO counselor and alleged that he was
subjected to discrimination on the basis of race (African-American)
when, on March 3, 2008, he met with the Assistant Special Agent in Charge
(ATSAC), who accused him of being overheard calling the ATSAC and other
Philadelphia office supervisors racists. Complainant denied making
the statement and said that the ATSAC argued with him and stated that
there were witnesses who heard him. Complainant stated that the ATSAC's
tone was argumentative and accusatorial and he believed he was being
threatened with discipline if he did not admit to making a statement
he did not make. When the matter could not be resolved in counseling,
complainant filed a formal complaint of racial discrimination. In its
final decision dated December 9, 2008, the agency dismissed the complaint
for failure to state a claim.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because complainant failed to show that he
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where,
as here, a complainant has not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission will
examine whether a complainant's allegations, when considered together
and assumed to be true, are 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).
Even if harassing conduct produces no tangible effects, a complainant
may assert a cause of action if the discriminatory conduct was so severe
or pervasive that it created a work environment abusive to complainant
because of his race, gender, religion, national origin, age or disability.
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). In applying this standard, the Commission has commonly found that
isolated incidents of remarks or comments, unless particularly severe,
do not create 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 the instant case, we conclude that complainant has alleged a single
incident of comments by a manager which he perceived as offensive.
However, even if proven to be true, we find that the events described
would not indicate that complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
his employment and entitle him to relief under Title VII. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint 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
March 30, 2009
__________________
Date
2
0120091154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091154