closed0120122634
02-19-2013
Kim Callantine, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Kim Callantine,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120122634
Agency No. FS-2011-01021
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 3, 2012, dismissing a formal 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
During the period at issue, Complainant worked as a Small Engine Mechanic in Missoula, Montana.
On December 24, 2011, Complainant filed a formal EEO complaint claiming that he was subjected to discrimination on the bases of sex (transgendered) and in reprisal for prior protected EEO activity.
In its final decision dated May 3, 2012, the Agency determined that Complainant's formal complaint was comprised of the following claims:
1. On November 18, 2010, he received a poor performance rating for Fiscal Year 2010 and when, in January 2011, he complained about it to a Human Resources representative, and he was told he should being looking for a new job.
2. On February 10, 2011, his FY 2010 performance rating was raised to Fully Successful. However, on February 22, 2011, he was issued a Letter of Instruction.
3. Beginning in the spring of 2007, and continuing until approximately March 4, 2011, he was repeatedly denied unspecified job opportunities.
4. Beginning in February 2004, and continuing until approximately March 4, 2011, he was subjected to various acts of harassment including:
a. on or about May 4, 2004, a co-worker made a derogatory comment about his gender;
b. on August 2, 2004,1 during a meeting, a co-worker said "I like [Complainant] about as much as I like my ex-wife," and I don't want [Complainant] in my shop"; and
c. beginning on or about December 1, 2005, he was given "little to no work or projects," was not given assistance with his job priorities, and "was not allowed to be on the computer system."
5. On March 4, 2011, [Complainant] entered into a settlement agreement to resolve a previous EEO complaint. However, the agreement failed to resolve all of his concerns, lacked adequate consideration, and he was coerced into entering into it.
6. After the March 4, 2011 agreement, [the Agency] has "failed to take adequate corrective measures to rectify a hostile work environment" in his permanent duty station and "he fears that at the conclusion of [his extended detail] he will again be thrown into a discriminatory environment without adequate protection."
The Agency dismissed Complainant's formal complaint in its entirety. The Agency dismissed claims (1) - (4) on the grounds that these matters were resolved by the March 4, 2011 settlement agreement. The Agency noted that the matters set forth in claims (1) - (4) predate March 4, 2011.
The Agency found that claim (5) was questioning the validity of a settlement agreement and that the Agency had previously issued a final decision finding that the agreement was valid and that the Agency was in compliance with its terms.
Finally, the Agency dismissed claim (6) for failure to state a claim. The Agency found that Complainant has not alleged a present harm or loss with respect to a term, condition, or privilege of his employment. The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 - 4
We find that the Agency properly dismissed these matters finding that they were resolved by a March 4, 2011 settlement agreement. The record contains a copy of the agreement. Provision B(4) provides, in pertinent part, that:
[Complainant agrees] to voluntarily waive, release and forever discharge the Agency, its employees, representatives, and agents for actions taken while acting in their official capacity, from any claims, demands or causes of action which Complainant has, or may have, for the allegations raised in any claim or alleged claim of employment discrimination against the Agency arising prior to the effective date of this Agreement..."
The alleged incidents set forth in claims (1) - (4) predate the March 4, 2011 settlement agreement. To the extent that Complainant is alleging that the March 4, 2011 settlement was not valid or lacked consideration, the record reflects that the Agency issued a final decision on April 19, 2012, finding that the agreement is valid and the Agency is in compliance with its terms. In its April 19, 2012 final decision, the Agency provided Complainant with appeal rights to this Commission. However, the record is devoid of evidence that Complainant appealed this matter to the Commission. Based on the foregoing, we will not further address Complainant's assertions that the settlement agreement was not valid and/or lacked adequate consideration.
Claim (5)
As set forth above, the record reflects that the Agency addressed Complainant's concerns regarding the March 4, 2011 settlement agreement in a final decision dated April 19, 2012. The Agency provided Complainant appeal rights to the Commission in its April 19, 2012 final decision. The record does not reflect that Complainant appealed this matter to the Commission. Therefore, as set forth above, we will not address these matters further herein.
Claim (6)
The Agency properly dismissed this matter for failure to state a claim. As set forth above, the alleged incidents occurring before to March 4, 2011, were resolved by a settlement agreement. Complainant asserts, in his statement on appeal, that he is continuing to be subjected to a hostile work environment. However, Complainant does not provide any specific detail on incidents that occurred subsequent to the March 4, 2011 settlement agreement. Rather, Complainant generally asserts that "upper management has continued to ignore personnel and work issues hoping that they will just go away...[b]y not dealing with specific personnel and issues this has created a hostile work environment..."
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. 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, 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.
Based on the foregoing, we find that Complainant has made merely general assertions that he has continued to be subjected to a hostile work environment. However, Complainant has not alleged any specific matters, subsequent to the execution of the March 4, 2011 settlement agreement, that are sufficiently severe or pervasive to set forth an actionable claim of harassment.
To the extent that Complainant is alleging that the hostile work environment is presently ongoing, he should contact an EEO Counselor regarding the specific incidents (subsequent to the execution of the settlement agreement) he has allegedly been subjected to, if he wishes to pursue this matter further .
We AFFIRM the Agency's final decision dismissing Complainant's formal complaint.
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
February 19, 2013
Date
1 Complainant, on appeal, asserts that this alleged incident occurred on July 29, 2005.
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0120122634
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120122634