Christopher O. Bailey, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionApr 19, 2010
0120100258 (E.E.O.C. Apr. 19, 2010)

0120100258

04-19-2010

Christopher O. Bailey, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.


Christopher O. Bailey,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

(Customs and Border Protection),

Agency.

Appeal No. 0120100258

Agency No. HS09CBP006167

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 31, 2009, 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 basis of race (African American) when he was

subjected to harassment by his former supervisor (RMO1). Complainant

alleges the harassment included the following incidents:

1. In October 2008, RMO1 threatened to charge complainant with being

Absent Without Leave (AWOL);

2. In January 2009, RMO1 told complainant not to wear a hooded jacket;

3. On January 8, 2009, RMO1criticized complainant's work on an assignment;

and

4. On May 20, 2009, RMO1 searched the computer system to see if

complainant had made any errors.

The agency dismissed the claims for failure to state a claim. The instant

appeal followed.

The Commission agrees that the complaint fails to state a claim under

the EEOC regulations because complainant failed to allege facts that, if

proven true, would show that he was subjected to harassment because of his

race that 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 alleged 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).

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

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

April 19, 2010

__________________

Date

2

0120100258

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120100258