0120093401
01-27-2010
Bruce E. Mason, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Bruce E. Mason,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120093401
Agency No. HS-09-TSA-004036
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated July 16, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
During the pertinent period, complainant worked as a Transportation
Security Inspector at a Virginia facility of the agency. He filed a
formal EEO complaint alleging that the agency subjected him to hostile
work environment harassment on the bases of sex (male) and religion
(Christian) when, in February 2009, his coworkers showed him an email
that an Assistant Director (S1) sent to several employees containing a
picture of two little girls holding valentines with the following caption:
"Peggy had many valentine cards while Viola only had one. Peggy is a
whore."1 Complainant stated that the email offended him as a Christian
and father of two, and that S1's behavior is consistently offensive.
Complainant further asserted that the coworkers who received the email
were also offended, but were afraid of retaliatory action on the part
of S1 if they complained.
In its July 16 decision, the agency dismissed complainant's claim
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency found that complainant was not aggrieved by
the action and that the action was not severe or pervasive. Further,
the agency stated that the email was not addressed to/directed toward
complainant and that complainant failed to show a nexus between the email
and his protected classes. The instant appeal from complainant followed.
On appeal, complainant contended that he was subjected to third-party
sexual harassment.
Alleged harassment by a supervisor that does not result in a tangible
employment action may still state a viable claim of discrimination
if the alleged conduct was "so objectively offensive as to alter the
'conditions' of the victim's employment." Oncale v. Sundowner Offshore
Services, Inc., 118 S. Ct. 998, 1002 (1998). Considering the incident
alleged in this case in the light most favorable to the complainant, we
determine that complainant's claim is insufficient to state a claim of
harassment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077
(March 13, 1997). The contention of third party versus direct harassment
does not change this determination. While acknowledging the inappropriate
nature of the email, especially if sent by a management representative,
we find that this single isolated incident, even if proven true, was not
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
However, with that finding, we caution the agency regarding its duty to
engage in proactive prevention of incidents like this one in order to
avoid future liability for an unlawful hostile work environment.
Accordingly, for the reasons discussed above, we AFFIRM the agency's
final decision dismissing complainant's complaint.
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
January 27, 2010
__________________
Date
1 Complainant submitted a copy of the email with his appeal that indicates
that S1 sent the email to nine recipients.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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