0120072254
09-25-2007
Thomas F. Kalil, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, (Farm Service Agency), Agency.
Thomas F. Kalil,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
(Farm Service Agency),
Agency.
Appeal No. 0120072254
Hearing No. 570200600152X
Agency No. FSA200400157
DECISION
On September 21, 2006, complainant filed an appeal from the agency's
August 21, 2006, final order concerning his equal employment opportunity
(EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a).
On February 15, 2005, complainant filed an EEO complaint alleging that
he was subjected to harassment and discriminated against on the bases of
race (Asian/Semetic), national origin (Middle Eastern/Arab), sex (male),
religion (Greek Catholic), color (Brown), disability (ankle and back
problems; learning disability), age (D.O.B. 01/30/53), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when on June 4, 2004, he was inadvertently e-mailed a message from
the Deputy Administrator of the Farm Loan Program for the agency which
in part stated "[H]e is such as [sic] ass!!!!!!!!!!!!!!!!!!!!?"
The record reflects that complainant was employed by the agency
as Assistant to the Deputy Administrator for Farm Loan Programs at
the Farm Service Agency. The record reflects that, on June 4, 2004,
complainant sent the Deputy Director of the FSA's Office of Civil
Rights an e-mail requesting to videotape a mandatory training session.
The Deputy Director forwarded this e-mail to the Deputy Administrator
for Farm Loan Programs at the agency, and the record contains an e-mail
from the Deputy Administrator to the Deputy Director which stated, in
part, that "[h]e is such as [sic] ass!!!!!!!!!!!!!!?" However, both
complainant and the Deputy Director received this email, and the Deputy
Director did not intend for complainant to receive the e-mail and has
no recollection of sending it to him or stating the alleged comment.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed a formal complaint. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case issued a Notice of Proposed Dismissal on
May 23, 2006. The AJ stated that pursuant to 29 C.F.R. �� 1614.107(a)
and 1614.109(b), AJs may dismiss complaints on their own initiative
after notice to parties or upon an agency's Motion to Dismiss. The AJ
stated that it was not apparent that the e-mail at issue was sufficient to
state a claim of harassment. The AJ therefore gave the parties ten (10)
days to respond to the Notice and explain the reasons the accepted issue
raised the kind of injury to a term, condition or privilege of employment
which would be considered an adverse action against complainant.
Subsequently, on July 24, 2006, the AJ issued an Order of Dismissal,
dismissing the complaint. The AJ found that the e-mail at issue was
insufficient to state a claim of harassment. In so finding, the AJ
noted that the conduct alleged was not sufficiently severe or pervasive
to create a hostile work environment. The agency then issued a final
order fully implementing the decision of the AJ. The agency also found
that the AJ's determination that complainant failed to state a claim
of discrimination was applicable to complainant's contention that the
agency's actions challenged in the instant complaint subjected him to
a hostile work environment based on marital status, parental status or
sexual orientation.
On appeal, complainant alleged that: (1) the AJ's assertion that
the complaint alleged only harassment is incorrect, as the complaint
alleged reprisal; (2) the complaint alleged that he had been subjected
to a continuing pattern of abusive conduct and language; (3) the act of
discrimination was acknowledged by the agency's Office of Civil Rights in
its acceptance of the complaint as meeting the standard for a discrete
act of discrimination to be part of a hostile work environment; (4) the
fact that his supervisor called him an "ass" is prima facie evidence of
the hostile environment to which he was subjected. The agency responded
to complainant's appeal, urging the Commission to dismiss the complaint
for failure to state a claim.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because, even when the factual allegation made by
complainant is considered and assumed to be true, it is not sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Consistent with the Commission's policy
and practice of determining whether a complainant's harassment claims
are sufficient to state a hostile or abusive work environment claim, the
Commission has repeatedly found that claims of a few isolated incidents of
alleged verbal harassment are usually not sufficient to state a viable
harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the instant case,
complainant alleged only that the agency's Deputy Administrator of the
Farm Loan Program inadvertently sent an e-mail to him which stated that
"[H]e is such as [sic] ass!!!!!!!!!!!!!!!!!!!!?" Given the fact that
complainant alleged only one (1) incident of harassment by the Deputy
Administrator in the instant case, we are not persuaded that this incident
so unreasonably interfered with complainant's work performance as to
constitute an adverse employment action, nor has complainant shown
that there were retaliatory incidents by agency management that were
reasonably likely to deter EEO activity.1 Therefore, we concur with the
AJ's finding that complainant has not alleged facts showing he suffered
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____9/25/07______________
Date
1 As we find that complainant failed to state a claim of harassment under
29 C.F.R. � 1614.107(a), we also find that the e-mail from the Deputy
Administrator also failed to state a claim of discrimination on all of his
alleged bases or retaliation. In so finding, we note the agency did not
take any adverse action for which a remedy could be provided due to the
e-mail, nor was the e-mail sent in a manner which would deter complainant
from engaging in protected EEO activity. Additionally, we concur with
the AJ's finding that any additional issues in support of complainant's
harassment claim were waived as he failed to raise these issues in the
appropriate time period provided by the AJ's Acknowledgement and Order
dated March 9, 2006. The record indicates that complainant failed to
inform the AJ within the required thirty (30) day time-period that issues
which were dismissed by the agency during the investigative process should
be considered by the AJ as part of a hostile work environment claim.
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0120072254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072254