0120160682
05-03-2016
Dewitt L.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dewitt L.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160682
Agency No. 156588802707
DECISION
Complainant timely appealed to this Commission from the Agency's October 16, 2015 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was working as a Machinist (WG-09) in the Voyage Repair Team ("VRT") at the Agency's Southwest Fleet Readiness Center in San Diego, California.
On September 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the bases of race (Caucasian), national origin (German), sex (male), color (White), and age (69) when:
1. On July 1, 2015, his supervisor ("S1"), without knowledge of what Complainant does, threatened not to pay him for working on waterbrakes, work commensurate with journeyman level duties; and
2. On July 28, 2015, S1 told him he did not know how to do his job.
Complainant's VRT Unit is responsible for repairing and maintaining aircraft carriers. As a Mechanist (GS-09), Complainant has specific responsibilities, which he alleges do not overlap with those of a Journeyman Mechanist (GS-10). On Appeal, Complainant clarifies his allegations, stating that S1 is forcing him to work on assignments beyond the scope of his job description because the VRT unit is short a Mechanic Journeyman. Complainant further alleges that the Commander of the Southwest Fleet Readiness Center is trying to "get rid of" employees over age sixty, which, as a new claim, will not be considered in this decision.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for 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, .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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
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. 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'."
Keeping in mind Complainant's clarification on appeal, we still find his allegations fail to state a claim of harassment. Claim 1 describes a common workplace occurrence-a supervisor assigning an employee work duties, which does not constitute harassment. See Odis D. Carver v. United States Postal Service, EEOC Appeal No. 01980522 (Feb. 18, 2000) The record indicates that when Complainant informed S1 at the time that he did not know how to fix waterbreaks, S1 told him to review the blueprints, take his time, and ask one of the journeyman mechanics to teach him. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of any of his protected classes, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Wolf v. United States Postal Service, EEOC Appeal No. 01961559 (July 23, 1998)); Long v. Veterans Administration, EEOC Appeal No. 01950169 (Aug. 14, 1997) We emphasize to Complainant that while an employee may prefer to perform certain duties, among others within his or her work assignment, or may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved.
Moreover, we have repeatedly found that a few isolated incidents of alleged harassment, such as S1's alleged comment in Claim 2, are usually insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995) There is also no evidence that Complainant was not paid for his work on the waterbreaks. We find the instant complaint, comprised a few isolated incidents of alleged harassment, fails to state a harassment claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. ignature
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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