0120121359
06-29-2012
James Tullos, Jr., Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
James Tullos, Jr.,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120121359
Agency No. HHS-CDC-0507-2011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 3, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
Complainant worked as a Public Health Advisor at the Agency's Center for Disease Control and Prevention facility in Atlanta, Georgia.
On November 12, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black). disability (Physical), and age (60) when:
1. On August 16, 2011, Complainant overheard a conversation between the volunteer Shelter-in-Place coordinator and a new employee, in which the Coordinator mentioned Complainant's name and that Complainant had a bad back;
2. On August 22, 2011, Complainant received no response to his request for a hearing or a discussion of his concerns.
The record shows that on August 16, 2011, at approximately 10:00 AM, the Agency began a Shelter-in-Place Exercise. All personnel were directed to proceed to the nearest Shelter-in-Place location. Once there, the employees discovered that no one had been assigned to serve as the Coordinator. For ten minutes, the room was quiet. One of the employees then volunteered himself. He left the room and returned with the building evacuation binder. This employee was not a team leader or a supervisor. This volunteer Coordinator (Coordinator) approached a new employee and engaged him in general conversation. The Coordinator then explained to the new person about the need to help evacuate people with disabilities and also said that "one works in the cube kiddy-corner from you at the end of [the Coordinator's] side of the run." That described Complainant's location. The Coordinator then said Complainant's first name and explained that "during our last evacuation drill [Complainant] had to leave the floor a little early to use the elevator to reach the first floor to avoid being run-over by all of the people coming down the stairs." Complainant maintains that the Coordinator added "with his bad leg and bad back problems, he can't make it down the stairs." Complainant overheard the conversation.
Complainant asserts that others heard this conversation and this was the "worst thing that ever happened to him as an employee." The Shelter-in-Place drill lasted for a total of twenty-five minutes. Complainant did not say anything during the time he was in the room.
Later that day, Complainant confronted the Coordinator, who is also an African-American. Complainant told the Coordinator that "he may have the right to speak as a floor coordinator, but that he did not have the right to talk about Complainant." Complainant told the Coordinator that when it comes to coordinating and assigning staff for the evacuation of persons with disabilities, it's up to the agency, facility managers and senior evacuation coordinators to manage that part of the process." The Coordinator responded that "Facility managers and coordinators have not assigned anyone to do that part of it; so I'm doing it."
The record also shows that, on an unspecified date, the Coordinator came to Complainant's cubicle and said that, as a floor coordinator, he needed to have Complainant's work phone number and home phone or cell number to put in his book. Complainant told him that he was not going to give him his phone numbers "because the federal government does not pay for my phones."
On August 22, 2011, Complainant submitted an "evidence document" to management and requested to discuss his concerns. The Agency did not discuss the matter until September.
In his complaint, Complainant is asking for the preapproval, prior to use, of all evacuation and shelter-in-place formal or ad-hoc presentations. He also wants "a public citation of the harms presented" and apologies to him and others "who were forced to witness the presentation" on August 16, 2011. Complainant also seeks back pay and overtime pay for service time working at the GS-12 level and work time exceeding the normal timeline of 40 hours per week.
The Agency reframed the complaint as alleging a claim of disability discrimination only and with regard to the two accepted issues. Complainant did not object to the Agency's restatement of the issues and has offered no evidence of race or age discrimination.
The Agency then dismissed the complaint for failure to state a claim. The Agency stated that the employee must allege a direct and personal deprivation at the hands of the employer, which it concluded Complainant did not allege.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his claims and argues that he was harmed because he suffered embarrassment. He did not address the allegations on race or age.
The appeal offered no brief in response to the appeal.
ANALYSIS
Initially, we note that we deem the other allegations regarding race, color and age waived, because Complainant does not appear to be pursuing those issues on appeal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant from 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, 1614.106(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 term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The proper focus for dismissals of EEO complaints under 29 C.F.R. � 1614.107(a)(1) is on whether the complainant is alleged to be aggrieved due to an unlawful employment practice. See Lurensky v. Federal Energy Regulatory Commission, EEOC Appeal No. 0120113822 (April 12, 2012), citing Cobb v. Dept. of Treasury, EEOC Request No. 05970077 (March 13, 1997). The question as to whether a complainant is alleged aggrieved due to an unlawful employment practice, of necessity, requires a consideration of whether the matter at issue is an unlawful employment practice and whether Complainant suffered actual harm because of the Agency's unlawful action.
Here, Complainant alleges that the Agency violated the Agency's policies that require a healthy workplace for all employees. Violating the Agency's policy is not the same as alleging a violation of the Rehabilitation Act. Further, it is not unlawful for an Agency to conduct a Shelter-in-Place event or to share information as to how it provides aid, benefit or services that result in making the activity accessible and safe for employees. See 29 C.F.R � 1630.9(d). In addition, we note that Complainant is not challenging any denial of accommodation.
Nevertheless, for purposes of our analysis, we will assume without finding that Complainant is an individual with a disability.1 We also acknowledge that Complainant's name was mentioned and personal information was shared with another employee, and Complainant felt embarrassed. Complainant concedes, however, that the Coordinator's intent was to inform the new employee about the requirements to safely evacuate individuals with disabilities. The circumstances surrounding the Shelter-in-Place incident do not give rise to an inference of animus against individuals with disabilities.
Further, the complaint fails to state a claim because Complainant's allegation is largely unspecific as to how Complainant's employment suffered as a result of the alleged incident.
Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996). In this case, the claim is an isolated incident. Standing alone, we find that issue 1 does not state a claim.
Issue 2 also fails to state a claim because the Agency has no duty to provide a notice of hearing prior to the filing of the formal complaint and the completion of the investigation.
For all of these reasons, the Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
June 29, 2012
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (AD0 to complaints of discrimination by federal employees or applicants for employment. Since that time, the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability discrimination.
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012012-359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121359