0120180418
03-22-2018
Lawrence L.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lawrence L.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120180418
Agency No. 201727397FAA05
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 10, 2017, dismissing his complaint alleging 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 an Airway Transportation Systems Specialist at the Agency's Dallas/Fort Worth Airport in Texas.
On August 4, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to harassment in retaliation for prior protected activity. Complainant claimed that the following were examples, although not the only ones, of the alleged retaliatory harassment:
On April 20, 2017, his supervisor (S1) told him not to start work until he had a meeting with Complainant. Complainant was told that there was another schedule that he should have been working, which S1 had in his hand. S1 then proceeded to change that schedule and directed Complainant to work another schedule that week. On May 4, 2017, Complainant had a Weingarten investigatory meeting, S1 accused Complainant of inappropriate conduct, failure to follow assignments/instructions, and absence and leave misconduct, including being Absent Without Leave.2
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, stating that Complainant's union grievance was not protected activity, and that he had not raised discrimination issues. The instant appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Usually, we would find that the Agency cannot dismiss a complaint of retaliation for failure to state a claim without an investigation on basis that Complainant has not engaged in prior, protected activity. However, in this case, an examination of the formal complaint and the related EEO counseling report makes it clear that Complainant is alleging retaliation solely for filing a union grievance. Complainant, in his formal EEO complaint, included a copy of his union grievance. Examination of that grievance reveals that Complainant did not raise any issues concerning allegations of discrimination. Without more, filing a union grievance that does not raise employment discrimination issues is not considered protected activity under Title VII.
Accordingly, under the circumstances presented by this case, we AFFIRM the Agency's dismissal of the complaint for failure to state a viable retaliation claim under Title VII.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 22, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record also shows that on October 3, 2017, Complainant received a notice of a proposed 14-day suspension alleging Complainant's refusal to work his assigned schedule, failure to comply with instructions and a lack of candor. It is not clear whether or not Complainant intended this proposal to be part of his ongoing harassment claim. If he has not already done so, Complainant should seek EEO counseling to challenge the suspension.
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