0120090786
03-26-2009
Michael L. Sylvester, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Michael L. Sylvester,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090786
Agency No. 9R1M08189
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 13, 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.
In his October 6, 2008 formal EEO complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Moorish American)
and reprisal for prior protected EEO activity when:
1. On 2 September 2008, complainant was told to remove his Black Panther
t-shirt, turn it inside out, or cover it up with a laboratory coat
because other employees found it offensive.
On October 7, 2008, complainant sought to amend his complaint to include
the following allegations:
2. In July and on August 8, 2008, complainant was not allowed to enter
the building through a locked door;
3. On September 17, 2008, complainant found that his CD player/radio
was missing from his desk area; and
4. On numerous occasions since July 2008, complainant has observed
coworkers without protective clothing, and when he told management,
nothing was done.
The agency dismissed the claims for failure to state a claim, finding
that complainant was not aggrieved. In addition, the agency found
that all of the claims except claim 1 should be dismissed for untimely
EEO counselor contact. The record shows that complainant contacted
a counselor on September 4, 2008 to initiate counseling regarding the
incident described in Claim 1. He subsequently sought to address the
remaining incidents. The FAD found that complainant did not contact an
EEO counselor to seek to amend his complaint to include the remaining
claims until more than 45 days after the incidents occurred, and hence,
these claims were untimely raised. See FAD, p. 3.
With regard to the agency's timeliness analysis, we find that a fair
reading of the record reveals that complainant was asserting a claim of
ongoing discriminatory harassment, of which each of the allegations (1 -
4) was offered as evidence. The Supreme Court has held that a complainant
alleging a hostile work environment will not be time barred if all acts
constituting the claim are part of the same unlawful practice and at least
one act falls within the filing period. See National Railroad Passenger
Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Since complainant is
alleging a hostile work environment and allegation 1 was timely raised
with an EEO counselor, the entire claim is timely, including allegations
2 - 4, offered as evidence in support of the claim. We shall therefore
address whether complainant states a claim of harassment by examining
all of the allegations raised.
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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
The Commission finds that the claims fail to state a claim under the
EEOC regulations because complainant failed to allege facts that, if
considered together and proven true, would show that he was subjected
to unwelcome verbal or physical conduct involving his protected classes,
that the harassment complained of was based on his statutorily protected
classes, and that the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown 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).
On appeal, complainant includes medical evidence of harm. As regards
complainant's argument that he incurred emotional harm from the
agency's actions, we note that the Commission has long held that where
an allegation fails to render an individual aggrieved, the complaint is
not converted into a cognizable claim merely because complainant alleges
physical and/or emotional injury. See Larotonda v. United States Postal
Service, EEOC Appeal No. 01933846 (March 11, 1994).
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 26, 2009
__________________
Date
2
0120090786
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090786