0120072736
03-20-2009
Roosevelt Young, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Roosevelt Young,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072736
Agency No. HS-06-TSA-002503
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated April 24, 2007, 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
complaint, complainant alleged that he was subjected to harassment when:
1. On April 30, 2006, a Letter of Reprimand, issued to complainant on
November 15, 2005, for an offense that occurred on October 21, 2005,
was rescinded and complainant ultimately received a proposed five-day
suspension.
2. On June 9, 2006, during an internal inquiry, one of complainant's
subordinates was asked questions regarding complainant's sexual
orientation.
The agency dismissed the complaint for failure to state a claim finding
that complainant failed to allege discrimination on one or more bases
(race, sex, religion, disability, etc.). The agency found that when
complainant was asked to clarify his complaint, he stated that he was
subjected to reprisal discrimination. The agency noted that complainant
claimed that S1 retaliated against him after he informed her that
"if she does not like the way I look, she doesn't have to look at me."
The agency found that complainant failed to identify a protected basis
other than reprisal and that his statements to S1 were not protected
activity and that therefore, the complaint did not allege discrimination
on any prohibited basis. The agency further found that claim (2) did not
allege conduct that was either sufficiently severe or pervasive to state
a claim of harassment. The agency therefore dismissed the complaint
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
On appeal, complainant argues that the agency failed to follow proper
procedures in issuing the discipline described in claim (1) and that the
agency improperly questioned complainant's subordinate employees about
matters that have nothing to do with his agency employment.
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. � 2000e et seq.), the Equal Pay Act (29 U.S.C. � 206(d)), the
ADEA (29 U.S.C. 621 et seq.), or the Rehabilitation Act (29 U.S.C. � 791
et seq.) or for participating in any stage of administrative or judicial
proceedings under these statutes.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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).
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.
In the instant case, we find the agency properly dismissed complainant's
complaint for the reasons described in its final decision. We note, as did
the agency that complainant did not specify a basis of discrimination in
his complaint.1 Specifically, in its final decision the agency describes
the attempts to obtain clarification of complainant's complaint with
respect to the bases of his claims as follows.
You did not identify any protected basis(es) on the formal complaint
form. A review of the EEC Counselor's Report indicated that you selected
race (Black) and reprisal. When contacted by email on December 5, 2006,
you were requested to clarify what was the basis of your complaint. On
December 15, 2006, you responded that you were "a 46 year old black
male." Subsequently, on December 18, 2006, you sent a follow-up response
that identified the actions you complained of as being in "reprisal for
my response to [S1] that if she does not like the way I look, she doesn't
have to look at me." The EEO Specialist subsequently called you to clarify
your responses submitted on December 15 and 18, 2006 to the December 5,
2006 email. At that time you replied that you were only claiming reprisal,
again citing the example contained in the December 18, 2006 email.
We consider that on appeal, complainant still does not identify on what
prohibited basis he believes he was subjected to discrimination and
we concur with the agency that the brief exchange with S1 complainant
described, without more, does not provide a basis for a complaint based
on reprisal. We find the agency properly dismissed the entire complaint
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
We further concur with the agency that the incident described in claim
(2) does not rise to the level of severity or pervasiveness necessary
to state a claim of harassment and we find that the agency properly
dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1).
We AFFIRM the agency's final decision dismissing the complaint .
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 20, 2009
__________________
Date
1 We observe that the record on appeal does not contain a copy of
complainant's complaint. We note, however, that complainant filed an
additional appeal in December 2008 (EEOC Appeal No. 0120090892) and the
record in that appeal contains a copy of the earlier complaint dated
October 4, 2006, which is the subject of this decision.
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0120072736
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072736