0120182085
09-21-2018
Porter P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Porter P.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120182085
Agency No. 18-67400-01506
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 25, 2018, 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 a Supervisory Social Worker/Psychologist Director, NF-5, at the Agency's Marine Corps Air Station in the city of Iwakuni located in Yamaguchi, Japan.
On April 24, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment on the basis of race (Black) when:
1. On February 16, 2018, Complainant was issued a Letter of Warning (LOW) by the Deputy Chief.
2. An email was sent to Complainant and others by the Deputy Chief on May 22, 2017, which Complainant disagreed with the tone.
3. An email was sent by the Deputy Chief on July 11, 2017, to another individual. The email was forwarded to Complainant and he felt that the message contained a link to an article related to substance abuse that displayed advertising links to pornographic websites.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(5) as a preliminary step rather than a discrete disciplinary action. Further, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that Complainant failed to show that the alleged actions were sufficiently severe or pervasive to state a claim of harassment. The Agency then noted that Complainant could not establish harassment because the issues raised were not threatening or intimidating. Therefore, the Agency dismissed the complaint as a whole. This appeal followed.
ANALYSIS AND FINDINGS
Letter of Warning
Upon review, we conclude that the Agency did not err in dismissing Complainant's claim concerning the February 16, 2018 letter of warning. The regulation set forth at 29 C.F.R. �1614.107(a)(5) provides, in part, that the Agency shall dismiss a complaint that alleges a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Here, the Letter of Warning stated it was being issued due to Complainant's asserted mishandling of a situation with a subordinate employee that led to possible inferences of discrimination and unlawful retaliation, placing the Agency at risk of liability. The letter specifically stated that it was not disciplinary and would not be placed in Complainant's official personnel records. Instead, it directed Complainant to attend a number of training sessions. While it did warn that similar conduct in the future could result in disciplinary action, we find that the warning in this instance was, as asserted by the Agency, more in the nature of a preliminary step to taking disciplinary action rather than effectuated discipline.
Harassment Claim
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. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." Following a review of the record, we find that in the instant case, viewing the allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged, without more, are simply insufficiently severe or pervasive to state a valid harassment/hostile work environment claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of the complaint.
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
September 21, 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.
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