0120102285
09-24-2010
Ricky J. Felder, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ricky J. Felder,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102285
Agency No. 10-40085-00724
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 12, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision dismissing Complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events at issue, Complainant worked as a Safety and Occupational Health Specialist at the Agency's Naval Facilities Engineering Command, Mid-Atlantic, in Norfolk, Virginia. Formal Complaint.
In October 2009, Complainant contacted an EEO Counselor. Complainant's June 9, 2010, Appeal Brief, at Ex. 2. On October 28, 2009, Complainant received a Notice of Aggrieved Person's Rights and Responsibilities. Id. On October 29, 2009, Complainant completed a Precomplaint Election Form, in which he indicated that he had no interest in pursuing the matter in the EEO process and wished to withdraw his contact. Agency's July 14, 2010, Appeal Brief, at Ex. 10. Complainant attested that he had spoken with an EEO Specialist and a Supervisory EEO Specialist regarding the incidents that had occurred prior to that date; the Supervisory EEO Specialist had advised him that he did not need to formally file an EEO complaint at that time because he was entitled to do so at any time. Complainant's June 9, 2010, Appeal Brief, at Ex. 1. The Supervisory EEO Specialist denied ever speaking with Complainant. Agency's July 14, 2010, Appeal Brief, at Ex. 9.
On January 12, 2010, Complainant contacted another EEO Counselor. EEO Counselor's Report, at 2. On February 22, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the basis of race (African American)1 and cited the following specific incidents:
1. on March 26, 2009, the Deputy Public Works Officer (DPWO)2 accused him of not inspecting a contractor's complaint of building fall hazards;
2. on June 3, 2009, the DPWO cursed at him and refused to discuss with him over the telephone the DPWO's request that he do the Fall Protection Training;
3. on June 3, 2009, the Production Officer (PO)3 directed him to do the Fall Protection Training, which was the PO's responsibility;
4. on September 16, 2009, the DPWO directed him to set up the exercise program Stretch/Flex training, when it was the responsibility of PO to do the training;
5. on October 19, 2009, the DPWO accused him of drinking on the job, asked him to take a fitness for duty exam,4 told him to blow his breath on the Director of Administration, and directed him not to leave the job after he (Complainant) indicated he would go home for the rest of the day;
6. on November 10, 2009, the DPWO notified him that he would be moving to Building 1500;
7. every week, the DPWO complains to his (Complainant's) supervisor that he is not doing what the DPWO wants, such as not putting his leave on the site calendar; and
8. on March 11, 2010, the PO accused him of not inspecting roofs.
On February 26, 2010, the Agency requested clarification from Complainant about his complaint. Specifically, the Agency asked Complainant to submit a written response describing the present harm or loss he suffered with respect to a term, condition, or privilege of employment that he received as a result of the alleged incidents. On March 19, 2010, Complainant submitted a narrative response to the Agency's request for clarification.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 CFR � 1614.107(a)(2) and for failure to state a claim pursuant to 29 C.F.R. � 1614.103. Agency's April 12, 2010 Final Decision (FAD), at 1. In its description of Complainant's allegations, the Agency cited incidents 1 and 4 through 7, but did not mention incidents 2, 3, and 8. Id. at 1-2. Regarding incidents 1 and 4 through 6, the Agency found that Complainant's January 12, 2010, EEO Counselor contact fell outside of the 45-day time limit. Id. at 2. Regarding incident 7, the Agency found that it failed to state a claim. Id. at 3.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserts that the Agency improperly fragmented his hostile work environment harassment claim into separate adverse actions, dismissed as untimely those incidents occurring more than 45 days prior to January 12, 2010, and dismissed for failure to state a claim the remaining incident. Complainant's June 9, 2010 Appeal Brief, at 4. Complainant argues that he clearly intended to file a harassment claim, his claim is timely in its entirety under the doctrine of continuing violation, and his overall harassment claim clearly states a claim. Id. at 4-8, 11. In addition, Complainant argues that the September 2009 and October 2009 incidents are separately timely because he sought EEO counseling within 45 days, in October 2009. Id. at 10-11. Further, Complainant argues that the Agency's final decision failed to even mention two of the harassment incidents that he had alleged. Id. at 12. Finally, Complainant requests that we reverse the Agency's final decision and remand his complaint for an investigation. Id.
In response,5 the Agency argues that Complainant's complaint failed to state a claim because Complainant's allegations did not result in a direct personal loss affecting a term, condition, or privilege of employment, and that his allegations, even if true, are not severe or pervasive enough to state a claim of hostile work environment harassment. Agency's July 14, 2010 Appeal Brief, at 3. In addition, the Agency argues that Complainant's EEO Counselor contact was untimely because, following his failure to pursue his allegations after meeting with the EEO Counselor on October 28, 2009, he did not raise the allegations with an EEO Counselor again until January 12, 2010, which was more than 45 days after the last incident on October 19, 2009.6 Id. at 5. Finally, the Agency requests that we affirm its final decision. Id.
ANALYSIS AND FINDINGS
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. 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. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
Assuming that Complainant initiated contact with an EEO Counselor on January 12, 2010, the latest act constituting Complainant's claim of harassment had to occur on or after November 28, 2009 in order to fall within the 45-day time limit. See 29 C.F.R. � 1614.105(a)(1). The record shows that, in describing incident 7, Complainant alleges, "Every week [the DPWO] constantly complains to [my supervisor] about me and why I'm not doing what he wants since he arrived." Formal Complaint. Accordingly, we find that Complainant's EEO Counselor contact on January 12, 2010, was timely with respect to his claim of ongoing hostile work environment harassment.
Dismissal for Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he 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 (Apr. 21, 1994).
In Harris v. Forklift Sys., 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 the 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 the harassment to which the complainant allegedly has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Upon review of the record, in the light most favorable to Complainant, we find that Complainant has failed to state a claim of actionable harassment. Specifically, we find that Complainant has not indicated that he suffered any specific harm with respect to a term, condition, or privilege of employment. In addition, we find that the incidents alleged, even if true, are not so severe and pervasive that they altered the conditions of Complainant's employment. In so finding, we note that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In this case, the record does not show that the actions of the DPWO and the PO rise to this level. Instead, we find that most of the incidents were normal workplace interactions between employees7 which, without more, are not sufficiently severe to render the work environment hostile. As such, we affirm the Agency's dismissal of Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's dismissal of Complainant's 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
September 24, 2010
Date
1 The EEO Counselor's Report, the Notice of Right to File, and the Agency's Final Decision all referenced race as the basis of Complainant's complaint. Complainant, however, had alleged color (unspecified) as the basis in his Formal Complaint.
2 The record reflects that the DPWO does not have supervisory authority over Complainant. Agency's July 14, 2010, Appeal Brief, at Ex. 6-7.
3 The record reflects that the PO does not have supervisory authority over Complainant. Agency's July 14, 2010, Appeal Brief, at Ex. 6-7.
4 There is no indication in the record that Complainant actually took a fitness for duty exam. Formal Complaint; EEO Counselor's Report, at 3-4.
5 29 C.F.R. � 1614.403(f) provides that any statement or brief in opposition to an appeal must be submitted to the Commission and served on the opposing party within 30 days of receipt of the statement or brief supporting the appeal. The record reveals that Complainant filed his brief supporting the appeal on June 9, 2010; the Agency filed a brief in response on July 14, 2010; and the Agency filed a revised brief in response on August 5, 2010. The Commission declines to consider the agency's August 5, 2010, revised brief, as it was untimely pursuant to 29 C.F.R. � 1614.403(f).
6 We find that the Agency stated the incorrect date for the last incident in Complainant's harassment claim.
7 As noted previously, the DPWO and the PO do not have supervisory authority over Complainant. Agency's July 14, 2010 Appeal Brief, at Ex. 6-7.
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0120102285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102285