01a60173
03-28-2006
Andrew D. Reid, Complainant, v. Norman Y. Mineta, Secretary, (Federal Highway Administration) Department of Transportation, Agency.
Andrew D. Reid v. Department of Transportation
01A60173
March 28, 2006
.
Andrew D. Reid,
Complainant,
v.
Norman Y. Mineta,
Secretary,
(Federal Highway Administration)
Department of Transportation,
Agency.
Appeal No. 01A60173
Agency No. 2005-19085-FHWA-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 18, 2005, dismissing his formal EEO 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.
In his formal complaint, filed on April 29, 2005, complainant claimed that
he was subjected to discrimination on the bases of race, color, and age.
In its final decision, dated August 18, 2005, the agency determined that
complainant's complaint was comprised of the following claim:
[Was complainant] subjected to harassment (hostile work environment) by
[his] supervisor based on [his] race (African American), color (black),
and age (D.O.B. 12/26/1949) when [he] was constructively discharged?
The agency dismissed complainant's complaint for failure to state a claim.
The agency stated that �the record shows that [complainant] allege[s]
discrimination in the form of harassment related to the transfer of
[his] job functions to contractors. Further [complainant] explain[s]
that this caused [him] significant stress and mental anguish over the
prospect of losing [his] job or being transferred to a position outside
of [his] field of expertise.� The agency concluded that these alleged
actions do not rise to the level of harassment or injury sufficient to
state a claim of constructive discharge.
On appeal, complainant asserts that the agency's final decision dismissing
his complaint is improper. Specifically, complainant states that his
supervisor told him that his performance was bad and to look for another
job or consider retirement.
In response, the agency requests that we affirm it final decision.
The agency states that there is no evidence in the record that complainant
previously raised the assertion that he was told by the agency to seek
another job or retire. The agency reiterates that the mere prospect of
complainant losing his job or being transferred outside of his field of
expertise does not state an actionable claim of harassment.
In his formal complaint, complainant sets forth the following chronology
of events. Complainant states that on February 4, 2004, the Director
of the Office of Budget and Finance (A1) conducted a meeting. At the
meeting, A1 informed complainant and three other African American
employees that she was hiring contractors to take over their job functions
and advised them to seek employment counseling and to consult with human
resources. Complainant further asserts that the Caucasian employees
were told by A1 that they would not be affected and to continue with
their normal duties.
On February 26, 2004, complainant and the three African American employees
met with A1's supervisor (A2). Complainant asserted that A2 told them
that no one would be losing their jobs and to continue doing the work
that they had been assigned. Complainant stated that the next follow
up was in June 2004, and that he and the other three African-American
employees were still �performing our original assignments.� In addition,
complainant stated that in June 2004, they were advised to �continue
working in the system and with [their] supervisors as [they] had done
over the past several months.� Furthermore, complainant states that A1
told other individuals at a conference in April 2004, that her accountants
were incompetent. Moreover, complainant states that he decided to retire
and �relieve [himself] from this hostile situation.�
We find that the agency properly dismissed complainant's complaint.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not 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). To the extent that complainant is
alleging that the remarks constituted harassment, the Commission notes
that unless the conduct is severe, a single incident or group of isolated
incidents will not be regarded as a claim of discriminatory harassment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Upon review
of the record, we find that the alleged incidents are not sufficiently
severe or pervasive to state a claim of harassment. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Furthermore,
because we find that the alleged incidents are not sufficiently severe
or pervasive to state a claim of harassment, we find that complainant
has not raised an actionable constructive discharge claim.
Accordingly, we AFFIRM the agency's final decision dismissing
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 28, 2006
__________________
Date