0120122974
12-21-2012
Michael P. Koob, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Michael P. Koob,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120122974
Agency No. 201224488FAA03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated June 6, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Controller at the Agency's Asheville Control Tower facility in Fletcher, North Carolina.
On May 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On February 19, 2012, a Coworker (CW1) tried to provoke Complainant into a heated discussion about politics by talking louder and louder and acting in a belligerent manner, causing Complainant to miss a call from an airplane; and
2. When Complainant complained to his Supervisor (S) about CW's actions, S responded by giving Complainant a letter directing him not to discuss politics in the "operating quarters."
The Agency characterized the claim as constituting the incident in claim 2 only, but in its analysis it also addressed the incident in claim 1. The Agency dismissed the claim for failure to state a claim, finding that the actions complained of were insufficiently severe to state a claim of harassment and that Complainant has not incurred a harm or loss and hence failed to state a claim of disparate treatment.
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). In the instant complaint we note that Complainant has alleged reprisal as a basis for discrimination. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
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. 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, such as the complaint at issue here, 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.
Complainant alleges that CW1 came to his work area and engaged Complainant and another coworker (CW2) in a conversation. CW1 then
turned the conversation towards economics and asked me a question about why jobs were being shipped overseas. He didn't like my response because he told me how stupid what I said was and of course how dumb I was. He then made a comment about dumbass republicans and I told him what I repeated came from a democrat but that I believed it was a main stream belief. He made another comment about me and republicans and became louder. I told him the conversation was over, and he became even louder. He was talking to the point of where I missed a call from an airplane. He then made a comment toward CW2 who witnessed the altercation.
Formal Complaint.
When Complainant complained to S about CW1's actions, S gave Complainant a letter directing him not to discuss politics.
On appeal, Complainant argues that management is complicit in the harassing behavior of CW1 because they are too afraid to discipline CW1 out of fear of him filing an EEO complaint against them. Following a review of the record, we find that Complainant has failed to state a valid claim of harassment based on reprisal. While the actions of CW1 may be obnoxious, Complainant has not alleged that the actions complained of either involved or were based on any prior EEO activity by Complainant. Instead Complainant indicates, through his statements in his Formal Complaint as well as his statements on appeal, that CW1's actions were based on his partisan political beliefs or on simple hostility. In this regard we note that Complainant has included an appeal brief showing CW1 engaging in similar argumentative and aggressive behavior with other coworkers besides Complainant with regards to politics or with regards to how well they did their jobs. Aggressive behavior based on such factors, however, is not prohibited by any law or regulation enforced by the EEOC. Furthermore, the actions complained of were not sufficiently severe or pervasive to alter the conditions of Complainant's employment.
The Agency found that Complainant did not show he was harmed by any Agency action and thus failed to state a claim of disparate treatment. We note, however, that Complainant has alleged reprisal as a basis for discrimination, and claims of reprisal are analyzed under a different standard, as noted above. While the Agency did not address the reprisal standard in dismissing his complaint, we nevertheless find that the Agency correctly found that Complainant fails to state a claim. This is because we find that, on the facts as alleged by Complainant, being drawn into aggressive arguments and/or being given a letter by a supervisor telling Complainant not to engage in political discussions are not the type of actions that are reasonably likely to deter Complainant or others from engaging in protected activity.
CONCLUSION
For the reasons provided above, we AFFIRM the Dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
December 21, 2012
__________________
Date
2
0120122974
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122974