0120081211
05-28-2008
Larry J. Tortorich, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Larry J. Tortorich,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081211
Agency No. HS04TSA001170
Hearing No. 270200500100X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 7, 2007 final order concerning his equal
employment opportunity (EEO) complaint alleging 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.
Complainant, a Training Coordinator at the Louis Armstrong New Orleans
International Airport (Airport) from October 2002 until he resigned
in June 2004, alleged that the agency discriminated against him on the
bases of sex (male) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964, when in connection with the
terms and conditions of his employment, he was purportedly subjected to
a hostile workplace which resulted in his constructive discharge on June
21, 2004.
On October 3, 2007, and after a hearing in this matter, the Administrative
Judge (AJ) issued a decision finding no discrimination. In reaching this
decision, the Administrative Judge initially found that complainant had
failed to establish by a preponderance of the evidence that his immediate
supervisor had harassed him on the basis of his sex. Complainant had
alleged that his immediate supervisor assigned him administrative tasks
that took him away from his duties as training coordinator, but she
assigned the same tasks to all of her staff. There is no evidence that
his immediate supervisor interfered with complainant's non-competitive
transfer. The AJ noted that the record shows that complainant's immediate
supervisor facilitated his requested reassignment. Secondly, these
actions by complainant's immediate supervisor did not have the purpose or
effect of unreasonably interfering with complainant's work performance
and/or create an intimidating, hostile or offensive work environment.
The AJ further noted that the allegations complainant raised were neither
sufficiently pervasive (i.e. filing for a couple of days, typing notes
from a meeting, giving gifts to the female staff at Easter), nor severe
(i.e. addressing him by his last name) to alter the conditions of his
employment and create an abusive working environment. The AJ determined
that if complainant had not established by preponderant evidence that he
was either retaliated against, or harassed on the bases of his sex, that
he has not established that his resignation constituted a constructive
discharge on the grounds of unlawful employment discrimination.
The record shows that complainant and other senior staff at the Airport
were under a great deal of stress while performing their duties.
The AJ maintained that this was understandable given the importance of
the agency's mission, and the hurried circumstances under which it was
created. However, there is no evidence showing that complainant's working
conditions arose from discrimination. Therefore, the AJ concluded,
there is no evidence to support a finding that complainant's resignation
resulted from discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 28, 2008
__________________
Date
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0120081211
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120081211