0120090751
03-12-2009
Richard T. Ng, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Richard T. Ng,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090751
Agency No. IRS080796F
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated December 18, 2008, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
At the time of the events at issue, complainant was employed as an
Internal Revenue Agent in an agency facility in California. In an
EEO complaint filed on September 24, 2008, complainant alleged that he
was subjected to a hostile work environment on the bases of disability
(unspecified) and reprisal for prior protected EEO activity. A fair
reading of the complaint and related EEO counseling materials reveals
that complainant alleged that on August 20, 2008, he and another employee
entered the office of his former manager and served him with a subpoena
that was related to matters that had previously been raised in a prior
EEO complaint and was currently pending in a civil action in Federal
District Court. Complainant asserted that the manager questioned why
the sheriff was not serving the subpoena, and then told them to leave
his office in a raised voice with an angry tone. Complainant further
alleged that the next day, the Assistant U.S. Attorney (AUSA) assigned
to represent the agency in the court case contacted complainant about
other arrangements to serve subpoenas rather than "invading employees'
workspace."
In its final decision, the agency dismissed the complaint for failure
to state a claim of harassment because the actions complained of were
insufficiently severe and pervasive to state a claim of harassment.
The agency further noted that the AUSA was an employee of the Justice
Department, and so complaints about his actions did not state a claim
with regard to complainant's employment with the agency.
Where, as here, a complainant has not alleged disparate treatment
regarding a specific term, condition, or privilege of employment,
the Commission will examine whether a complainant's allegations,
when considered together and assumed to be true, are sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Even if harassing conduct produces
no tangible effects, a complainant may assert a cause of action if the
discriminatory conduct was so severe or pervasive that it created a work
environment abusive to complainant because of his race, gender, religion,
national origin, age or disability. Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied
EEOC Request No. 05970995 (May 20, 1999). The Commission has commonly
found that isolated incidents of remarks or comments, unless particularly
severe, do not create a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No.05940695
(February 9, 1995). Applying these standards, in the instant case, we
conclude that even accepting the events as alleged by complainant as true,
he has not alleged harassment that is sufficiently severe or pervasive
to state a viable claim of a discriminatory hostile work environment.
We do note that complainant has raised a claim of unlawful retaliation,
as well as his disability discrimination claim. The anti-retaliation
provisions of the employment discrimination statutes seek to prevent an
employer from interfering with an employee's efforts to secure or advance
enforcement of the statutes' basic guarantees, and are not limited to
actions affecting employment terms and conditions. Burlington Northern &
Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006).
To state a viable claim of retaliation, complainant must allege that: 1)
s/he was subjected to an action which a reasonable employee would have
found materially adverse, and 2) the action could dissuade a reasonable
employee from making or supporting a charge of discrimination. Id.
While trivial harms do not satisfy the initial prong of this inquiry,
the significance of the act of alleged retaliation will often depend
upon the particular circumstances. See also EEOC Compliance Manual,
No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity states a claim). Under the
facts of this case, we determine that it is unlikely that the manager's
actions, as described by complainant, were significant enough to deter
a reasonable employee from engaging in protected activity. Therefore,
the complaint, as characterized by complainant, fails to state a viable
claim of retaliation.
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 12, 2009
__________________
Date
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0120090751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090751