0120070583
12-19-2007
Arthur F. Thibodeau, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Arthur F. Thibodeau,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070583
Agency No. 060002501279
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 6, 2006, 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 discrimination
on the bases of sex (male) and reprisal for prior protected EEO activity
under an EEO statute that was unspecified in the record when:
1. On January 11, 2006, complainant was issued a "Notification of
Management Directed Reassignment Outside the Commuting Area" and formally
notified that his position was being '"abolished." Complainant was given
an ultimatum of accepting the forced reassignment or being separated
under adverse action procedures;
2. complainant was placed under Naval Facilities Engineering Command
Southwest (NAVFAC SW);
3. A junior attorney serving the same client as complainant was not
placed under complainant's supervision;
4. in October 2004, and continuing to the present, complainant's
supervisor (S: female) reduced complainant's client base while he was on
military leave without informing complainant or modifying his position
description;
5. in November 2004, S instructed co-workers to break into complainant's
office while he was on military leave;
6. in April 2005, and continuing to the present, S did not add clients,
who were part of the same organization, to complainant's client list;
7. in June 2005, and continuing to the present, complainant was assigned
a small cubicle while junior personnel have separate offices; and
8. in November 2005, and continuing to the present, S instructed
complainant not to contact Base Realignment and Closure (BRAC) Counsel's
Office regarding work-related issues.
The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(5) on the
grounds that the action complained of was a proposed action. The agency
further found that the remaining actions failed to state a claim.
Following a review of the record, the Commission finds that the
complaint fails to state a claim of sex discrimination under the EEOC
regulations because complainant failed to show that he was subjected
to unwelcome verbal or physical conduct involving his protected class,
that the harassment complained of was based on his statutorily protected
class, and that the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown he
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant, however, has also claimed reprisal as a basis of
discrimination. The Commission has held that the statutory retaliation
clauses prohibit "any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party from engaging
in protected activity." EEOC Compliance Manual, Notice No. 915.003,
Section 8 on "Retaliation", at 8-14, 8-15, 8-16 (May 20, 1998).
Following a review of the record, we find that complainant states a
cognizable claim of reprisal because the actions complained of are
"reasonably likely to deter [complainant] from engaging in protected
activity." Furthermore, as complainant is alleging that the actions
complained of all constitute part of the same continuing violation,
and the most recent incident occurred within 45 days of complainant's
EEO Counselor contact, we find that complainant's EEO Counselor contact
was timely for all the incidents raised.
Therefore, the agency's final decision dismissing complainant's complaint
is AFFIRMED in part and REVERSED in part and the case is REMANDED to
the agency for additional processing as described below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
December 19, 2007
__________________
Date
2
0120070583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070583