0120152892
10-03-2016
Terrance S.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terrance S.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152892
Agency No. 2013-25090-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 12, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Equipment Specialist at the Agency's AWW Headquarters facility in Glenn Dale, Maryland.
On May 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic and Puerto Rican)2, age (60), disability and/or in reprisal for prior participation in protected activity when, in February 2013, he was not selected for the position of Reproduction Specialist advertised under Vacancy Announcement No. AAC-EXT-13-AJV-371-30380, when he was excluded from consideration because his resume did not reflect that he operated printing press equipment. Complainant also indicated that he believed the Selectee falsified his application and that he is now training the Selectee which he argued constituted harassment.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(4), finding that Complainant had filed a prior grievance on the same matter. The Agency determined that Complainant filed a grievance on February 25, 2013, alleging that he was not selected for the position in question. It further contends that the grievance process allows employees to raise claims of discrimination. Since Complainant had decided to pursue his claim with the grievance process first, the Agency found that it was appropriate to dismiss the instant complaint.
To the extent that Complainant was raising a separate complaint of harassment concerning training the Selectee, the Agency also dismissed that claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant failed to state a claim. The Agency noted that Complainant did not allege that he was harmed by the alleged request to train the Selectee.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides for an agency dismissal of a formal complaint where a complainant has raised the mater in a negotiated grievance procedure that permits allegations of discrimination. Complainant's grievance and the subsequently filed instant formal complaint address the same matter. The collective bargaining agreement provides for pursuit of a claim in the EEO complaint process or the grievance process, but not both. To the extent that Complainant asserts that his grievance does not address alleged discrimination, we note that where, as here, factual issues are the same in the grievance and in the succeeding EEO complaint, the claim is precluded. Norfolk v. Dep't. of Justice, EEOC Appeal No. 01A51617 (April 24,2003). Moreover, withdrawal of a grievance does not nullify the initial election of the grievance process. Complainant v. Dep't. of Transp., EEOC Request No. 0520140164 (June 10, 2014). As such, we find that the Agency's dismissal of the claim was appropriate.
To the extent that Complainant had a separate claim concerning having to train the Selectee, the Agency also dismissed it 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. 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 he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
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'." Following a review of the record, we find that in the instant case, Complainant fails to state a viable claim of a discriminatory hostile work environment. The action alleged, without more, is simply insufficiently severe or pervasive to state a valid claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint as a whole.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
October 3, 2016
__________________
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 Although Complainant also alleged discrimination on the basis of race (Hispanic), the Commission notes that it considers the term "Hispanic" to be a national origin rather than a racial group.
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