0120131813
08-14-2013
Joseph F. Fabozzi, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Joseph F. Fabozzi,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120131813
Agency No. 201324926FAA01
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 19, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Air Traffic Control Specialist at the Agency's PNEATCT facility in Philadelphia, Pennsylvania.
On February 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was charged AWOL on November 22, 2012; on December 31, 2012, he was issued a letter of warning; and he has been harassed by a co-worker since October 12, 2013, and management has failed to take action.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(4), stating that Complainant had raised the same matters in the grievance process that allows for claims of discrimination to be raised.
The instant appeal followed. In his appeal, Complainant states he does not dispute the dismissal of the claims related to the AWOL and the letter of warning because of his earlier filed grievance. However, he states he did not raise his harassment claim in the grievance.
ANALYSIS AND FINDINGS
Because Complainant does not challenged the dismissal of the claims related to being charged AWOL and receiving a letter of warning, we need not address them further.
With regard to his claim of co-worker harassment, the Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Based on a fair reading of Complainant's harassment claim, his allegations, even if proven true, concern isolated events of little severity that are insufficient to state a viable claim of a hostile work environment. Complainant basically states that his co-worker did not plan his break properly, and he overheard the co-worker telling someone that Complainant was lazy. In addition, Complainant alleges that the co-worker did not provide him with adequate union representation. This allegation may state a claim under the laws enforced by the Federal Labor Relations Authority, but does not state a claim of employment discrimination.
We conclude that the complaint fails to state a claim under the EEOC regulations because Complainant failed to allege that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 (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
August 14, 2013
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Joseph F. Fabozzi
99 Bay Pkwy
Waretown, NJ 08758
Mary N. Jones-Whigham, Director
Office of Civil Rights, S-30
Department of Transportation
1200 New Jersey Ave., S.E.
Washington, D.C. 20590
__________________
Date
______________________________
Compliance and Control Division
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Director, Appellate Review Program FROM: Mary Jean Secoolish, Attorney 7/31/13 Mary Jean Secoolish, Supervisor Catherine McNamara, Division Director Appeal Number(s) 0120131813 Agency Number(s) 201324926FAA01 Hearing Number(s) Complainant(s): Joseph F. Fabozzi Agency: DOT (FAA) Decision: Statute(s) Alleged Title VII and Rehab Act Basis(es) Alleged ***Bases codes MC*** Issue(s) Alleged ***Issues codes MC*** (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of Agency's Merits
Decision
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 5M - AJ issued procedural dismissal
? 5V - OFO affirmed AJ procedural dismissal
? 5W - OFO Reversed AJ procedural dismissal
? 5X - OFO modified AJ procedural dismissal
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed in part
and reversed in part, then (3L) Code required if at
least one issue is remanded)
? 3L - OFO remanded PART of the Agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference ? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 10/25/11
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Joseph F. Fabozzi DOT (FAA) 0120131813
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLASS ACTION CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
Mary Jean Secoolish 7/31/13
Attorney Date
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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