01A11709
06-26-2002
Thomas Lafayette Smith, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Thomas Lafayette Smith v. Department of the Navy
01A11709
June 26, 2002
.
Thomas Lafayette Smith,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A11709
Agency No. DON 01-69214-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq, and section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
ISSUES PRESENTED
(1) Whether the agency properly dismissed part of complainant's complaint
for failing to initiate contact with an EEO counselor forty-five (45)
days from a discriminatory event which occurred March 2, 1999; and
(2) Whether the agency properly dismissed that part of complainant's
complaint which alleged that a preliminary step to taking a personnel
action was discriminatory; and
(3) Whether complainant filed an EEO complaint and simultaneously
participated in a negotiated grievance procedure concerning the same
discriminatory events.
BACKGROUND
The record reflects that complainant is a Mechanical Engineering
Technician (MET) employed at the Naval Weapons Station Charleston in
Goose Creek, South Carolina (�facility�). The record further reveals
that complainant and a co-worker (CW) exchanged verbal remarks on March
2, 1999 that provoked an altercation between the two later that day.
Also in March 1999, complainant's supervisor (S1) ordered complainant
to clean the print room in addition to his duties as a full-time MET.
The altercation on March 2, 1999 resulted in an agency pre-action
investigation. The commander conducting the pre-action investigation did
not inform complainant when the investigation ended. Complainant learned
at a meeting with S1 on September 5, 2000 that the facility's Commander
found complainant and the CW equally responsible for the altercation,
and had issued only verbal warnings.
At the September 5, 2000 meeting, complainant also addressed S1's
indifference to the verbal remarks the CW had made toward complainant.
Complainant specifically asked S1 �what he would have done if
[complainant] was being hostile� toward the CW. S1 responded, �I would
have taken action.� As a result, complainant believes had a �Black man�
or a �woman� been the brunt of the verbal remarks, S1 would have taken
immediate corrective action. Due to his inability to cope with S1's
indifference, complainant, under his doctor's orders, left work from
September 11-25, 2000.
In a formal complaint dated October 31, 2000, complainant alleged that
he was the victim of unlawful employment discrimination on the bases
of race (White), sex (male), religion (unknown), and mental disability
(anxiety disorder) when: (1) S1 made an alleged adverse statement in
a meeting on September 5, 2000; (2) management did not close out the
pre-action investigation and took no action against CW surrounding the
incident which took place on March 2, 1999; (3) management stopped his
pay between September 11, 2000 and September 25, 2000; (4) management
tasked him with cleaning the print room; and (5) management subjected
him to harassment due to a hostile work environment.
On November 27, 2000, the agency issued a final agency decision (FAD),
initially dismissing items (1) and (5) of the complaint for failure to
state a claim. The FAD also dismissed item (2) of the complaint on the
grounds that the alleged discriminatory event was merely a preliminary
step to taking personnel action. Specifically, the agency found that the
pre-action investigation did not include a recommendation for corrective
action, and did not need to remain open. The FAD dismissed item (3)
of the complaint for raising an issue of alleged discrimination that was
previously addressed through the agency's negotiated grievance process.
In addition, the FAD dismissed item (4) of complainant's complaint
for untimely EEO Counselor contact. The agency found that the hostile
environment complainant complained of was not sufficiently severe or
pervasive because verbal remarks alone cannot render complainant an
�aggrieved employee.� The agency added that S1's refusal to quell the
remarks did not harm a term, condition, or privilege of complainant's
employment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2), provides that an agency may
dismiss a complaint that does not comply with time limits. The time
limit relevant to this case requires a complainant
�to initiate contact with a counselor� within forty-five (45) days of
the date of the most recent discriminatory event. EEOC Regulation 29
C.F.R. � 1614.105(a)(1).
An agency may also dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. EEOC Regulation 29 C.F.R. � 1614.107(a)(5).
Preliminary steps do not make the complainant an �aggrieved employee�
within the meaning of EEOC Regulations because such actions do not,
without further action, harm the complainant with respect to a term,
condition, or privilege of employment. See Blumner v. EEOC, EEOC Request
No. 01952640 (Jan. 19, 1996). In particular, pre-action investigation
findings are a preliminary step to future action. Hamilton v. Dep't of
Navy, EEOC Request No. 01991422 (Oct. 8, 1999).
EEOC Regulation 29 C.F.R. � 1614.107(a)(1), further provides that an
agency may dismiss a complaint that does not state a claim. An agency
shall accept a complaint from any aggrieved employee who believes that she
has been discriminated against by the agency due to race, color, religion,
sex, national origin, age, disabling condition or prior EEO involvement.
EEOC Regulation 29 C.F.R 1614.105(d). An �aggrieved employee� is 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. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). An employee
is considered �aggrieved� when hostile or abusive conduct in the
workplace changes a �term, condition, or privilege� of her employment.
The Commission has repeatedly found that verbal remarks unaccompanied
by a concrete agency action is not severe or pervasive enough to create
an environment that a reasonable person would find hostile or abusive.
See Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695 (Feb. 9,
1995). Moreover, it is also necessary that more than a few isolated
incidents of discrimination have occurred.
The Commission initially finds that the agency properly dismissed items
(1) and (5) of the complaint for failure to state a claim, because the
CW's verbal remarks were isolated and did not affect a term, condition,
or privilege of employment. Though the CW may have humiliated complainant
by stating that �[he] don't have to take any sh** off [complainant],� the
remarks did not alter complainant's employment status, or unreasonably
interfere with complainant's work performance. Additionally, the CW's
verbal remarks were an isolated incident, as they began the morning
of March 2, 1999, and culminated in the altercation that afternoon.
Complainant has since hesitated to speak to the CW, and instead reports
complaints regarding the CW directly to S1. In addition, whether or
not S1 quelled the verbal remarks is not controlling since the Commission
found that the verbal remarks were neither hostile or abusive enough to
affect a term, condition, or privilege of employment.
Similarly, we find that the agency properly dismissed item (2) of the
complaint, which alleged that a preliminary step to taking a personnel
action was discriminatory. The pre-action investigation documented
and summarized the facts surrounding the March 2, 1999 altercation. It
did not include a recommendation for corrective action. Consequently,
closing the pre-action investigation did not preclude the agency from
taking disciplinary action. Actually, the record reflects that the
commander proceeded to discipline the CW for the March 2, 1999 altercation
with complainant by issuing him a verbal warning. Thus, closing the
pre-action investigation was a preliminary step to taking disciplinary
action, and did not tolerate the CW's hostile behavior toward complainant.
The Commission also finds that the agency properly dismissed item (4)
of the complaint for untimely EEO counselor contact, because complainant
contacted an EEO counselor on October 5, 2000, considerably more than
forty-five (45) days from March 1999, the date complainant stated that
S1 ordered him to clean the print room.
Regarding item (3)(management stopped complainant's pay between September
11, 2000 and September 25, 2000), pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(4), the Commission finds that the agency improperly dismissed
the complaint for raising the same matter in an EEO complaint that
was raised in the negotiated grievance procedure. However, a thorough
review of the record submitted to the Commission failed to unearth any
documentation establishing that complainant in fact filed any grievance
with the agency, let alone a grievance concerning the sick leave he took
from September 11-25, 2000. Since there is no evidence of record that
complainant raised this in a negotiated grievance procedure, we find
that he may raise the issue in the EEO complaint process.
Therefore, we remand the claim that complainant was discriminated against
on the bases of race, sex, religion and disability when management
stopped his pay between September 11, 2000 and September 25, 2000.
Thus, we AFFIRM the FAD in part, REVERSE the FAD in part, and we REMAND
this matter to the agency for further processing in accordance with the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
June 26, 2002
__________________
Date