0120081041
03-28-2008
Arthur Gordon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Arthur Gordon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081041
Agency No. HS07TSA001205
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 30, 2007, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Caucasian), color (White), age
(D.O.B. 01/18/50), and reprisal for prior protected EEO activity under
an EEO statute that was unspecified in the record when:
1. From October 18, 2005 to an unspecified date in November 2006,
management officials made derogatory comments related to complainant's
race and to older employees in general;
2. On November 27, 2006, complainant received a notice that his salary
offset waiver as a Rehired Annuitant might not be extended; and
3. On January 18 and February 5, 2007, he was informed of management's
concerns regarding his position as the National President of the Federal
Law Enforcement Officer's Association.
The agency characterized claim 1 differently. Specifically, the
agency characterized the claim as addressing only those incidents that
occurred in September 2006. The agency dismissed claims 1 and 3 for
failure to state a claim, and claim 2 for addressing a proposed action.
As regards claims 1 and 3, the agency found that the actions complained
of were insufficiently severe so as to constitute harassment based
on age and/or race. Following a review of the record, we REVERSE the
agency's decision.
In his Formal Complaint, complainant says that he believes that the
agency is seeking to replace older workers, many of whom are "Rehired
Annuitants." He said that on October 18, 2005, an Assistant Administrator
(RMO1: race and age unknown) said to him "you guys (referring to Rehired
Annuitants) would have to step aside so the younger people could move up."
On September 19 or 20, 2006, complainant alleges, another Assistant
Administrator (RMO2: race and age unknown) said "I see you as old, White,
and pathetic and its time to rid ourselves of this type of leadership."
A few days later, RMO2 said "the Rehired Annuitants would have to step
aside so [the agency] could hire more minorities. Look around, you're
all old, White, and gray-haired." Complainant further contends that the
agency Assistant Secretary (RMO3: race and age unknown) reiterated RMO2's
statements, saying that employees such as complainant "needed to step
aside so the younger people could move up." Complainant next contends
that on another occasion in September 2006, RMO2 again stated that the
agency "is too White and too grey (in reference to older employees) and
changes are needed to reflect the diverse society in which we live."
As regards claim 2, complainant essentially contends that the notice
informing him that his salary offset waiver as a Rehired Annuitant might
not be extended was another instance of harassment based on age and race.
In considering whether any of the above actions, whether individually
or collectively, constitute harassment, the Commission notes that in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), that harassment is actionable if it is sufficiently severe
or pervasive that it results in an alteration of the conditions of
the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected to
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. 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).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct "must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive,
and . . . that the victim in fact did perceive to be so." Id. See also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001).
We note initially that it is unclear from complainant's complaint whether
the alleged statements were made in his presence or if they were made
before others and he only heard of them second-hand. For the purposes of
determining whether or not complainant states a claim, we shall assume
that the statements were made in complainant's presence. While the
agency correctly found that claim 2 addresses a proposed action, the
agency did not address claim 2 under a hostile work environment theory.
Following a review of the record, we find that complainant states a claim
of harassment based on age and race with regard to the incidents raised
in both claims 1 and 2.
As regards claim 3, the agency found that complainant was not an
aggrieved employee because he had not suffered a present harm or
loss with respect to a term, condition, or privilege of employment,
and that he therefore failed to state a claim. We note, however,
that complainant alleges that the concerns raised by management about
his position as the National President of the Federal Law Enforcement
Officer's Association were in retaliation for him filing an EEO complaint.
Complainant maintains that management had been aware of this outside
position for years, yet only raised ethical concerns one week after he
notified management about his intent to file a claim. The Commission has
a policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000). Under Commission policy, claimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May
20, 1998), at 8-15; see also Carroll, supra. We find that management's
actions in notifying complainant that it had ethical concerns about
his outside position one week after he notified them of his intent to
file a complaint, to be an action "reasonably likely to deter protected
activity," id, and hence we find his claim states a claim of reprisal.
Accordingly, the FAD is REVERSED and the claims are REMANDED to the
agency for further processing in accordance with this decision and the
ORDER 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
March 28, 2008
__________________
Date
2
0120081041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120081041