01a03326
09-06-2000
Robert J. FitzGibbon, Complainant, v. William S. Cohen, Secretary, Department of Defense, Army & Air Force Exchange Service, Agency.
Robert J. FitzGibbon v. Department of Defense
01A03326
09-06-00
.
Robert J. FitzGibbon,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
Army & Air Force Exchange Service,
Agency.
Appeal No. 01A03326
Agency No. 98.012
Hearing No. 370-98-2656X
DECISION
On April 6, 2000, Robert J. FitzGibbon (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The final agency action was dated March
9, 2000. Accordingly, the appeal is timely and is accepted by this
Commission in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be
codified at 29 C.F.R. � 1614.405). Based upon a review of the record,
and for the reasons stated herein, it is the decision of the Commission
to AFFIRM the final agency action.
Complainant, a Food Activity Manager, filed a formal EEO complaint in
November 1997, alleging that he was subjected to sex (male) and reprisal
discrimination during a temporary duty assignment to the Balkans.
Specifically, complainant stated that: 1(a) the General Manager ignored
him from April 17 through May 18, 1997; 1(b) he was transferred to
another location in Bosnia on May 19, 1997; 1(c) from April 17 through
September 1997, he was subjected to a hostile work environment; 2(a)
he was transferred to Hungary in June 1997;<2> 2(b) he was threatened
with being expelled from the country; and 2(c) his previously approved
request for an extension, and his request for a new extension were denied
on September 17, 1997. The agency accepted complainant's complaint
for processing, and conducted an investigation. Complainant requested
an administrative hearing in the matter. After providing the parties
with the appropriate notification, the Administrative Judge (AJ) issued
a decision, without a hearing, dismissing issues 1(a) through 1(c)
and 2(a) on the grounds that complainant failed to timely contact an
EEO Counselor, and issue 2(b) for failure to state a claim. The AJ
further determined that complainant had not been subjected to harassment
or disparate treatment as alleged. The agency, in a decision dated March
2, 2000, implemented the AJ's decision. It is from this decision that
complainant now appeals.
After a careful review of the record, the Commission finds that the
AJ correctly dismissed allegations 1(a) through 1(c) and 2(a) as being
untimely. Complainant does not dispute that his contact with the EEO
Counselor in September 1997 was beyond the 45-day limitation period
specified in the EEOC Regulations.<3> 64 Fed.Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.105(a)(1)). Although complainant asserted, on appeal, that he did
not initially contact a Counselor because he feared retaliation, Congress
anticipated that Title VII complainants might fear reprisal, and provided
a remedy therefor by prohibiting discrimination against any individual
because he opposed any practice made unlawful under Title VII, or made
a charge or participated in any manner in any proceeding thereunder.
Section 704(a) of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e-3(a). Thus, appellant's fear of reprisal does not
justify his failure to contact an EEO Counselor. The Commission also
finds complainant's contention that the agency did not provide an adequate
EEO process, including face-to-face interviews with a Counselor, to be
unpersuasive. The General Manager stated that he provided complainant
with the names and telephone numbers of EEO Counselors in the Region.
Further, it is noted that the Commission has previously held that receipt
of EEO counseling by mail is not an inappropriate method. See, e.g.,
Henry v. USPS, EEOC Request No. 05960145 (November 13, 1997).
The Commission also finds the AJ's dismissal of allegation 2(b) for
failure to state a claim to have been proper. As noted by the AJ, the
Commission has held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render
an individual aggrieved for purposes of Title VII. See Simon v. USPS,
EEOC Request No. 05900866 (October 3, 1990).
Finally, the AJ correctly determined that complainant was not subjected
to harassment or disparate treatment as alleged. Specifically, the
AJ found that, even assuming the accuracy of complainant's version
of events, the actions were not sufficiently severe or pervasive to
alter the conditions of complainant's work environment. The Commission
notes that while the AJ indicated, in part, that complainant failed to
establish a prima facie case of sex discrimination because he did not
show that he was treated differently than similarly situated employees,
complainant must only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
See O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996). Nevertheless,
the AJ correctly determined that complainant failed to show that the
agency's articulated reasons for the transfer and the denial of an
extension, that is, the removal of another Manager for misconduct and
the Commander's policy not to extend employees unless operationally
necessary, were pretext for prohibited discrimination. We therefore
discern no basis to disturb the AJ's findings.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_09-06-00_________________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2For purposes of clarity, the Commission will refer to the issues by
the same numbers designated in the Administrative Judge's decision.
3With regard to issue 1(c), the AJ correctly noted that the record showed
that complainant was transferred to Hungary in June 1997, and thereby
removed from the allegedly hostile environment.