0120083353
03-02-2012
Lawrence Battle, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Lawrence Battle,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120083353
Agency No. 2007-21058-FAA-02
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated June 16, 2008, 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.
BACKGROUND
Complainant began his service with the Agency in 1973, and, at the time
of his removal, he was working as a Management and Program Analyst,
FG-343-14, Step 10, with the Strategic Requirements Division, Air
Traffic Office, Federal Aviation Administration (FAA), located in
Washington, D.C. On February 20, 2000, following his absence from
work for almost 17 months, the Agency notified Complainant that he was
terminated from employment for “non-disciplinary reasons” and for his
“unavailability to perform the duties of [his] current position” and
his “inability to perform the essential functions of [his] position.”
In April 2000, the Agency barred him from all Agency buildings.
On January 19, 2007, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination and harassment on the
bases of race (African-American), sex (male), color (Brown), disability
(mental and physical), age (59), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. the Agency ignored, failed, and refused to take action regarding his
November 7, and November 22, 2006, letters regarding his return to work;
2. he was notified on August 28, 2006, that a job search was not
required or necessary since he was not, or is not, a qualified person
with a disability;
3. AHR provided him all disciplinary and adverse actions taken against
him from March 1, 1997, through February 2000;
4. the Agency informed him the last adverse employment action of record
was his notice of termination on February 14, 2000; and
5. by letter dated January 22, 1999, he was directed to return to work
on February 16, 1999, which exacerbated his medical condition.
On June 11, 2007, the Agency dismissed the complaint on several grounds.
Complainant filed an appeal with the Commission. On appeal, in EEOC
Appeal No. 0120073287 (Feb. 8, 2008), the Commission affirmed the
dismissal of Complainant’s harassment claim in regard to incidents 3,
4, and 5 and remanded for further investigation his harassment claim
involving incidents 1 and 2, in order for the Agency to determine whether
to accept or dismiss the remanded claims.
The Agency conducted a supplemental investigation on claims 1 and 2.
On June 16, 2008, the Agency issued a Final Agency Decision (FAD),
dismissing the two pending claims, finding that claim 1 failed to state
a claim and stated the same claimed previously raised. With regard to
claim 2, the Agency found that it was not brought to the attention of
an EEO counselor in a timely manner. Complainant appeals this FAD to
the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in dismissing claims 1
and 2 in its June 16, 2008 FAD. The Agency did not provide any response.
ANALYSIS AND FINDINGS
Claim 1
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 for employment who believes that he 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, .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 a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
We find that the Agency properly dismissed claim 1 in its June 16, 2008
FAD. After a review of the supplemental investigation it is apparent
that Complainant failed to allege any harm or loss with regard to a
term, condition, or privilege of employment for which there is remedy.
With regard to claim 1, Complainant is merely alleging that the Agency
failed to respond to his correspondence request that he be reinstated.
We note that Complainant has not alleged that he was entitled to a
reinstatement in this allegation.1 Rather, he was merely not pleased with
the Agency’s lack of response. We find that Complainant has failed to
establish that the Agency’s lack of response affected a term, condition,
or privilege of employment or that the Agency was otherwise obligated
to communicate with him after receiving his letters in November 2006.
Claim 2
Complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. 29 C.F.R. § 1614.105(a)(1) The Commission has adopted
a “reasonable suspicion” standard (as opposed to a “supportive
facts” standard) to determine when the forty-five (45) day limitation
period is triggered. See Howard v. Dep’t of the Navy. EEOC Request
No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered
until a Complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
The record reveals that Complainant received a response dated August 28,
2006 from the Agency Privacy Act Coordinator (APAC) in response to a
letter he wrote inquiring in part as to any records maintained by the
Agency regarding efforts to provide him with a reasonable accommodation.
In that letter, the APAC stated “since [Complainant was] were not
or are not a qualified person with a disability, a job search was not
required or necessary, therefore, no search was conducted.” Complainant
initiated EEO Counseling on December 27, 2006, nearly four months later.
Complainant has not provided any reason to justify waiving the time
requirements. Complainant argues that the Agency has failed to comply
with time frames, however, we find this is not sufficient to explain why
Complainant was not able to meet the requisite time frames. Accordingly,
we find that the Agency appropriately dismissed claim 2 for untimely
EEO Counselor contact.
Harassment
In order to establish a claim of harassment, Complainant must show that
he was subjected to conduct that was objectively severe or pervasive
as to alter the conditions of his employment and create an abusive work
environment. See Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283
(1998); Harris v. Forklift Co., 510 U.S. 17 (1993); Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986). We note that Complainant is no
longer employed by the Agency. We find that given that Complainant,
at the time of the incidents, was not employed by the Agency and that
the two incidents are not objectively severe or pervasive, Complainant
failed to state a claim of harassment.
CONCLUSION
After a full and thorough review of the record in this case and
consideration of all timely statements submitted on appeal, including
those not specifically addressed, the Commission AFFIRMS the Agency’s
June 16, 2008 FAD.
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
___3/2/12_______________
Date
1 Complainant has filed an EEO complaint alleging that the Agency failed
to reinstate him after being notified on March 26, 2006, by the Office
of Workers’ Compensation Program, Department of Labor (OWCP), and
the Office of Personnel Management (OPM) that he could return to duty
under the OWCP Back to Work Program (BTW). Agency No. 2006-20472-FAA-02.
We note that the appeal of this complaint is pending before the Commission
in Battle v. Dep’t of Transp., EEOC Appeal No. 0120102704.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120083353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083353