0120181503
08-22-2018
Fredrick A.,1 Complainant, v. Philip A. Miscimarra, Chairman, National Labor Relations Board, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fredrick A.,1
Complainant,
v.
Philip A. Miscimarra,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0120181503
Agency No. HDQ1807
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 27, 2018, 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 an Associate Chief Information Officer, GS-14, at the Agency's Office of the Chief Information Officer (OCIO), Headquarters facility in Washington, D.C.
On January 30, 2018, Complainant filed a formal complaint alleging "a pattern of discrimination" based on his race. He stated that the Agency subjected him to discrimination on the basis of race (African-American) when:
1. The Agency failed to promote him in or around December 2016.
2. The Agency "diminished" Complainant's work duties on or around December 15, 2016, when he was told to submit a SF 52 (accretion of duties promotion to GS-15) for one of his subordinate employees.
3. The Agency created a hostile work environment when the Inspector General (IG) required that Complainant use leave for taking a coffee break during working hours in or around June 2017, and that the IG subjected him to frequent testing, and audits to present Complainant in a bad light, and on or about November 6, 2017, the IG issued an audit report that addressed, in part, OCIO's internal controls and security practices.
According to the related EEO counseling report and statement from Complainant, in December of 2016, the Human Resources Specialist entered Complainant's office and asked him to submit a SF-52 for the "promotion to GS-15" of one of Complainant's subordinates (Caucasian). Complainant alleges that Complainant's duties as the ACIO, Information Assurance, "have been diminished." At the time, Complainant was a GS 14. Complainant claims that he was not informed by the CIO or the Deputy CIO about the plans to promote one of Complainant's subordinates to a higher grade than Complainant held at the time. Complainant asked his immediate supervisor about this and was told this was an "accretion of duties" promotion for the subordinate. Complainant claims that he was not given the favorable support provided to the Caucasian subordinate.
In June of 2017, Complainant and another NLRB employee were getting breakfast at a caf� to bring back to the office. The IG was behind him in line. According to Complainant, when he returned to his office, Complainant's supervisor entered his office, along with the IG. The IG told Complainant that he needed to take leave for the time Complainant took at the cafe. This instruction was given to Complainant, while his supervisor and the IG were standing in Complainant's doorway. Complainant claimed that this was embarrassing to him, because other subordinates overheard the conversation. He claimed that none of the other NLRB employees were required to take leave.
With regard to the November 2017 IG audit report on OCIO's internal controls and security practices, Complainant alleges the report was critical and reflected on him because he was responsible for having "developed and implemented Agency IT Security Program since 2006-2014."
Agency Decision
The Agency determined that Complainant's initial EEO contact occurred on or about November 14, 2017. The Agency dismissed the entire complaint on the grounds that Complainant failed to state a claim and failed to comply with the applicable regulatory requirements set forth in 29 C.F.R. 1614.107, specifically failing to make timely EEO contact for every claim other than the issuance of the IG report. Regarding the failure to state a claim, the Agency reasoned that Complainant failed to present evidence that he was mentioned in the IG report or that he personally suffered a harm or loss from the issuance of the IG report.
This appeal followed. On appeal, Complainant restated his claims that he was singled out and not accorded the favorable treatment given to his Caucasian subordinate. He claims that he was embarrassed by being told in the presence of his subordinate that he needed to take leave.
The Agency did not file a brief in response to the appeal.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that 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.
According to the EEO counseling report, Complainant first initiated contact concerning these matters on November 14, 2017. This initial contact was significantly more than 45 days from all of Complainant's allegations other than the issuance of the IG report on November 6, 2017. Complainant does not dispute this date on appeal. Therefore, we affirm the Agency's dismissal of all but the issues concerning the IG on timeliness grounds.2 However, because Complainant has alleged a pattern of harassment by the IG, we will consider his allegation concerning the June 2017 coffee break, as well as the issuance of the November 2017 IG report, as part of a timely harassment claim. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (the Supreme Court held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period).
Failure to State a Claim
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'." Here, Complainant has alleged he was subjected to a hostile work environment by the IG when: (1) he "singled out" for disparate treatment on a single occasion when he was told he would have to take leave for a coffee break, and (2) one of his primary responsibilities (IT security) was the subject of an IG investigation and negative report. Viewing the allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged, without more, are simply insufficiently severe or pervasive to state a valid claim. We note the coffee break matter was an isolated incident, and Complainant has failed to explain either below or on appeal how he was harmed by the IG report.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2018
__________________
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.
2 We do caution the Agency that the dates in its records are in disarray and, under other circumstances, we might find it has failed to support its dismissal. For example, the EEO counselor's report in this matter is mistakenly dated "2/23/17" when other documents in the record indicate that that it should have been dated "2/23/18." The Notice of Right to File is dated on page one as "January 18, 2017," but signed by the counselor and Complainant on page 2 on "01-18-18". Clearly, the 2018 dates are the correct ones as Complainant signed his formal complaint digitally on January 30, 2018.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181503
5
0120181503