0120103256
11-29-2011
Sidney Myers, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Sidney Myers,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120103256
Agency No. FS-2009-01358
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 1, 2010, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Social Services Assistant at the Agency’s Forest
Service facility in Cherokee, North Carolina.
On February 12, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination and harassment on the bases
of race (Caucasian), sex (male), and age (70). In support of his claim
of harassment, Complainant indicated that the following events occurred:
1. Complainant’s Supervisor (Supervisor) is significantly younger
than Complainant and has made blatantly ageist remarks against him in
his presence such as, Complainant “...need[ed] to take [his] old ass
out of the house."
2. On or around September 21, 2009, in an effort to build a case against
Complainant and to get Complainant out of his position, Complainant
was falsely, unjustifiably and wrongfully accused of discussing an
employee’s personnel actions in front of other staff.
3. On or about September 21, 2009, Complainant was unjustifiably and
without reason given a proposed suspension in an effort to build a case
against him and force him out. Complainant was charged with failure to
follow instructions of the Supervisor.
4. Complainant believed that he was being targeted and that the Supervisor
was building a case against him in an effort to remove Complainant
and two other Caucasian employees by removing them from their jobs.
Complainant asserted that the Center Director said he needed to take
his 34 unproductive years at the Agency and leave.
The Agency dismissed claim (3) pursuant to 29 C.F.R. § 1614.107(a)(5) for
raising a claim regarding a proposed action. The Agency indicated that
the proposed suspension was reduced to a Letter of Instruction requiring
Complainant to attend 40-hours of supervisor training by March 31, 2010.
The Agency also noted that the Letter of Instruction was not disciplinary
in action and was not placed in Complainant’s personnel file. Further,
the Agency dismissed the complaint as a whole pursuant to 29 C.F.R. §
1614.107(a)(1) finding that Complainant failed to state a claim.
This appeal followed without specific comment.
ANALYSIS AND FINDINGS
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 that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory. Upon review, we find that the
Agency properly dismissed the claim regarding the proposed suspension.
The record indicated that the five-day suspension was a proposed action
and that the suspension was reduced to a Letter of Instruction which does
not constitute a disciplinary action. However, we note while the Letter
of Instruction is not a viable claim on its own, it should be considered
as part of the evidence offered in support of Complainant’s claim of
ongoing harassment.
As noted above, the Agency dismissed Complainant’s complaint alleging
harassment for failure to state a claim. Under the regulations set
forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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. Dep’t of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint
for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may
survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant’s employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Complainant indicated
that he was issued a Letter of Instruction, required to attend 40 hours
of supervisory training, been falsely accused of discussing another
employee’s personnel action, and told to take his 34 years of service
and leave. Taking the events as alleged as a whole, the Commission
finds that Complainant’s allegations are sufficient to state a claim
of a hostile work environment. Accordingly, we find that the Agency’s
dismissal of the complaint was not appropriate.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter in accordance with the
ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing
harassment/hostile work environment) in accordance with 29 C.F.R. §
1614.108 et seq. The Agency shall acknowledge to the Complainant that
it has received the remanded claims within thirty (30) calendar days
of the date this decision becomes final. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
November 29, 2011
__________________
Date
2
0120103256
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103256