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