0120120056
03-19-2012
Robert Budynas, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Robert Budynas,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120056
Agency No. ARCARSON11JULY03164
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 20, 2011, 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 a Human Resources Assistant at the Agency’s Fort Carson, Colorado
facility.
On September 7, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(Caucasian), color (white), sex (male) and reprisal1 when he was:
(1) given a counseling statement by his supervisor on July 26, 2011,
and (2) subjected to a hostile work environment. Complainant provided
three examples of the alleged hostile work environment: on July 20,
2011, his senior rater humiliated him at a retirement briefing where
he was a presenter by cutting him off and stepping towards him as he
was introducing her as the next speaker; in May 2011, his senior rater
corrected him at a retirement briefing and “nastily” stated her
name correctly which was demeaning; and in April 2011, at an office
function, the senior rater told him that he was using too much of her
barbeque sauce.
The Agency dismissed the claim of hostile work environment for failure
to state a claim. With regard to the counseling memo, the Agency
indicated that the memo was destroyed the next day and never went into
Complainant‘s file. With regard to the hostile work environment claim,
the Agency found that the alleged events were neither sufficiently severe
nor pervasive to constitute a valid claim.
The instant appeal followed. Complainant asserts on appeal that because
he does not see the senior rater that often, there was a “high frequency
percentage of hostility” towards him. Additionally, he asserts the
alleged actions caused him physical and mental harm. Complainant states
he received the counseling statement the day after he initiated an EEO
complaint and the action was retaliatory.
ANALYSIS AND FINDINGS
With respect to Complainant’s hostile work environment claim, 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).
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). We find that Complainant’s
allegations, even if proven true, concern events that are insufficient to
state a viable claim of a hostile work environment. Although Complainant
claims to have had to seek mental health care as a result, the Commission
has held that allegations that fail to state a claim cannot be converted
into a viable claim merely because the complainant requests compensatory
damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request
No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture,
EEOC Appeal No. 01961499 (November 3, 1997).
Regarding complainant's claim of reprisal with respect to the memorandum
of counseling, the Commission has stated that adverse actions need
not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation.
Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
Given that Complainant received the memorandum of counseling one day
after he file an EEO complaint, the Commission finds that Complainant
has set forth a viable claim of reprisal in that such actions would
deter a party from engaging in protected activity.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED in part and REVERSED in part. The Agency shall
comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (regarding the
counseling memorandum) in accordance with 29 C.F.R. § 1614.108 et seq.
The Agency shall acknowledge to the Complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The Agency shall issue to Complainant a copy
of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the Complainant requests a final decision without
a hearing, the Agency shall issue a final decision within sixty (60)
days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
March 19, 2012
__________________
Date
1 While the Agency did not recognize reprisal as one of the bases claimed
in the complaint, we note that on his formal complaint form, Complainant
checked reprisal.
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0120120056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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