0120113982
01-24-2012
Henry F. Towns, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Henry F. Towns,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113982
Agency No. 116588801791
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Dismissal) dated May 26, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Apprentice Program Administrator at the Agency’s Fleet Readiness
Center Southwest facility in San Diego, California. On May 5, 2011,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American) and color
(Black) when he was subjected to a hostile work environment when the
following incidents occurred:
1. On 17 February 2011, a management official (RMO1) declined to process
a request for personnel action that Complainant, as an Apprentice Program
Administrator, had submitted to promote another employee (CW) after CW
satisfactorily completed an apprentice program;
2. RMO1 then refused to discuss the matter with Complainant;
3. On 17 February 2011, Complainant’s first-line supervisor (RMO2)
insisted that Complainant go talk to RMO1 but no one was willing to
listen to Complainant;
4. On February 24, 2011 RMO2 told Complainant that RMO1 brought up the
issue of his refusal to process CW’s personnel action at a meeting
with Complainant’s second-line supervisor (RMO3); and
5. On March 24, 2011, RMO2 asked Complainant to begin monitoring the
attendance and tardiness of apprentices.
The Agency dismissed the claim for failure to state a claim, finding
that the actions complained of were insufficiently sever or pervasive to
state a claim of harassment. Complainant makes no argument on appeal,
and the Agency requests that we affirm its Dismissal.
ANALYSIS AND FINDINGS
We note initially that, with regard to the denial of the personnel
action, Complainant is not alleging that RMO1 denied a personnel action
affecting Complainant but rather that the denial of a personnel action
for CW, a third party, somehow affected Complainant merely because
Complainant was the person who submitted CW’s personnel action for
processing. Following a review of the record, the Commission finds
that the complaint fails to state a claim under the EEOC regulations
because Complainant failed to show that he was subjected to unwelcome
verbal or physical conduct involving his protected classes, that the
harassment complained of was based on his statutorily protected classes,
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). Specifically,
even assuming events occurred exactly as described by Complainant,
such actions are not sufficiently severe or pervasive as to constitute
a hostile work environment. Nor has Complainant 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). Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
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 (S0610)
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 (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
January 24, 2012
__________________
Date
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0120113982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113982