Michael J. McDermott, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionOct 29, 2009
0120092329 (E.E.O.C. Oct. 29, 2009)

0120092329

10-29-2009

Michael J. McDermott, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.


Michael J. McDermott,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120092329

Agency No. 096300035D

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 7, 2009, 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. For the

following reasons the agency's decision is affirmed in part, reversed

in part and remanded.

In his complaint, complainant alleged that he was subjected to

discriminatory harassment on the bases of sex (male) and in reprisal

for protected EEO activity when:

1. On November 20, 2008, during a training session, an agency official

(Assistant Area Manager) said "we don't need to protect the men, it is

only the women who count."

Complainant further alleged that in reprisal for his opposition to the

comment made on November 20, 2008, complainant the following occurred:

2. During EEO training, an agency official (who had been present at the

November 20, 2008 training session), made a point to discuss problems

with employees who deliberately file "frivolous" complaints so as

to improperly game the system and essentially extort money from the

Government. Complainant alleges further that these comments were not

part of the EEO training manual and seemed specifically directed at him.

3. Agency officials are using concerns complainant raised about serious

fire, electrical and life safety problems with the Census Offices and

Census Manual Directions to provide pretexts for reprisal and to justify

his termination.

4. After using the Occupational Safety and Health Administration (OSHA)

website to research and write a document concerning office safety issues

identified by complainant, he was then told to focus only on his AMFO

duties and of how "very angry" [named agency officials] were with him.

5. In a training class conducted on December 10, 2008 by [named agency

official], a joke was made of the safety problem complainant had

previously reported.

The agency found that complainant failed to suffer any harm with respect

to the terms, conditions and privileges of his employment and dismissed

complainant's claim of harassment finding that the incidents described

were not severe or pervasive enough to state a claim. As such, the

agency dismissed complainant's complaint pursuant to EEOC Regulation 29

C.F.R. � 1614.107(a)(1).

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. 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).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57,67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find

[it] hostile or abusive" and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

Upon review, the Commission finds that claim 1 was properly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

Specifically, the Commission notes that complainant suffered no

adverse action regarding a term or condition of his employment as a

result of the alleged comment. In addition, while the alleged comment

was inappropriate, this single comment, even if proven true, would not

establish conduct so severe and pervasive that it altered the conditions

of complainant's employment. Therefore, the agency's dismissal of claim

1 therefore is affirmed.

In claims 2-5, complainant alleges that the agency subjected him to

reprisal for his opposition to the alleged discrimination described

in claim 1 above. While, the Commission finds that claim 1 fails

to state a claim, we note that complainant's decision to oppose the

alleged discriminatory statement by initiating the instant complaint

is the type of activity protected by the anti-retaliation provisions

of the EEOC regulations. We find that the comments made during the EEO

training regarding "frivolous" complaints could reasonably have caused

complainant to feel intimidated. As such, the Commission finds that in

claim 2, complainant has stated a justicible claim of reprisal that the

agency should have considered as such. In that regard, the agency's

decision concerning claim 2 is reversed and claim 2 is remanded to the

agency for processing

Turning now to claims 3, 4, and 5, the Commission finds that the agency

properly dismissed the claims pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. A fair reading of the claims indicates

that claims 3, 4, and 5 relate to OSHA concerns complainant has raised

regarding the safety of his workplace. The Commission finds that such

claims raising safety violations and any reprisal related to reporting

alleged violations are under the jurisdiction of OSHA and are not properly

before the Commission. Therefore, the agency's decision dismissing

claims 3, 4, and 5 is affirmed.

Accordingly, the agency's dismissal of claims 1, 3, 4, and 5 is affirmed

while the agency's decision concerning claim 2 is reversed. Claim 2 is

therefore remanded to the agency for processing in accordance with this

decision and the Order below.

ORDER (E0408)

The agency is ordered to process the remanded claim (2) in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

October 29, 2009

__________________

Date

2

0120092329

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120092329