0120120213
10-24-2012
David A. Williamson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
David A. Williamson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120120213
Agency No. P20110660
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated September 15, 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 Senior Officer Specialist at the Agency's Federal Correctional Complex facility in Butner, North Carolina.
On June 25, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and reprisal for prior protected EEO activity when from January to May, 2011, Complainant was subjected to harassment in the form of:
1. An inmate made frivolous complaints against him;
2. Complainant's own complaints about inmates were not properly handled;
3. Complainant was given both verbal and written counselings;
4. Complainant was the subject of an Office of Internal Affairs' Investigation; and
5. Complainant was removed from his post.
The Agency addressed the first four allegations, but not the fifth. The Agency found that Complainant had only claimed reprisal as a basis of discrimination, and dismissed the complaint for failure to state a claim on the grounds that Complainant had not engaged in prior protected EEO activity. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
We note initially that Complainant does not deny on appeal the Agency's finding in its Dismissal that Complainant did not engage in prior protected EEO activity, nor does a review of Complainant's Formal Complaint identify any prior protected EEO activity supposedly engaged in by Complainant. Furthermore, the Agency notes that Complainant alleged that management officials "began retaliating against you after you complained to management about unsafe working conditions" Dismissal, p. 1, while a review of the Complaint also includes allegations management officials retaliated against Complainant for being a "whistleblower." Because whistleblowing and complaining about unsafe working conditions are not protected EEO activity and Complainant has not shown he engaged in protected EEO activity, we find Complainant failed to state a claim of reprisal.
However, Complainant argues on appeal that he intended to include race (African American) and national origin (not Hispanic) as additional bases of discrimination on his Complaint Form DOJ-201A, but that these were accidentally left out. Complainant further argues that the descriptive narrative of the alleged discriminatory incidents that is attached to the Complaint Form shows that Complainant intended to include race and national origin as bases. Specifically, Complainant argues
Page three of the original complaint in this matter clearly outlines the preferential treatment that Mexican/Hispanic inmates were receiving from [Complainant's] Hispanic supervisor. [Complainant] alleges black inmates are treated differently than Hispanic inmates (paragraph 2). As a black officer being supervised by a white lieutenant and a Hispanic Captain, [Complainant] has been subjected to the racially motivated and discriminatory standards set by these two supervisors.
Complainant Appeal Brief, p. 1.
With regard to discrimination based on race and national origin, we agree with Complainant's argument on appeal that a fair reading of the narrative portion of his Formal Complaint shows that he intended to include claims of race and national origin discrimination.
We note that 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to allegation 1, Complainant has not shown how having frivolous complaints made against him by an inmate result in a present harm or loss with respect to a term, condition or privilege of employment. Furthermore, since the complaints came from an inmate and not an Agency official, Complainant cannot show that such incidents constituted employment discrimination by the Agency. Therefore, allegation 1 was properly dismissed from the complaint.
With regard to allegations 2, 3, 4 and 5, Complainant has, in essence, raised a claim of a pattern of ongoing harassment based on his race and national origin. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. In this case, we find that, considered together and in the light most favorable to Complainant, allegations 2-5 raise a viable harassment claim that requires an investigation and further processing. Accordingly, we reverse that Agency's dismissal of this portion of the complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of Complainant's reprisal claim, as well as his allegation concerning an inmate making a complaint about him. However, we REVERSE the Agency's dismissal of Complainant's harassment claim (characterized by allegations 2, 3, 4 and 5) based on race and national origin. These matters are REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment because of race and national origin) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
October 24, 2012
__________________
Date
2
0120120213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120213