01A23846_r
07-23-2003
Timothy Gray, Complainant, v. Anthony Williams, Mayor, District of Columbia Government, (Court Services and Offender Supervision Agency), Agency.
Timothy Gray v. District of Columbia Government
01A23846
July 23, 2003
.
Timothy Gray,
Complainant,
v.
Anthony Williams,
Mayor,
District of Columbia Government,
(Court Services and Offender Supervision Agency),
Agency.
Appeal No. 01A23846
Agency No. 02-14
DECISION
Complainant appealed to this Commission from the agency's June 13,
2002 dismissal of his employment discrimination claims. Complainant, a
Substance Abuse Case Manager in the agency's �New Directions� program,
filed two separate complaints, which the agency consolidated for
processing pursuant to 29 C.F.R. � 1614.606. The agency defined
these complaints as alleging discrimination on the bases of race
(African-American), sex (male), religion (Christian), and color (black)
when:
Complainant attended various meetings with his second-line supervisor
(2LS) to discuss his interim performance appraisal, a letter of conduct,
and complainant's behavior in the workplace;
Complainant overheard a discussion between a coworker and 2LS regarding
the coworker's well-being after returning from sick leave; and
From November 1, 2001 through January 14, 2002, complainant was subjected
to a hostile work environment when he attended various meetings with his
first-line supervisor (1LS) to discuss complainant's work performance,
duties, responsibilities, and training.
In its decision, the agency dismissed the entire consolidated complaint
for failure to state a claim. Specifically, the agency found that
complainant never identified how he was harmed in any of the meetings he
attended with 2LS or 1LS. Further, the agency found that the complaint
was moot, because complainant had been reassigned to a different unit
and no longer had contact with either supervisor.
The record on appeal contains complainant's formal complaints and EEO
Counselors Reports. Both provide detailed accounts of complainant's
meetings and altercations with his supervisors. In his formal complaints,
complainant alleges that the agency discriminated against him when:
On September 5, 2001, complainant met with 2LS to discuss his annual
performance appraisal. Complainant argued that he should have received a
rating of �exceeds� for each element, but his appraisal was not changed.
On November 1, 2001, 1LS called an impromptu meeting, and accused
complainant of lying about his whereabouts between 8:30 a.m. and 12:15
p.m. When complainant asked to leave, 1LS demanded �in a hostile tone�
that complainant remain.
Between November 14, 2001 and January 14, 2002, 1LS made it clear to
complainant that he was not to say anything about �God� and religion
in the workplace. Complainant argues that he was made to feel that
it was not �OK� for him to pray in the privacy of his office, or to
discuss religion when his clients had questions about God.
On December 21, 2001, complainant attended an all staff meeting wherein
2LS accused the staff of failing to work in a professional manner.
He warned �if you don't like how this unit is being run - then you need
to update your resume and find yourself another job.� Complainant took
issue with 2LS's scheduling practices, and 2LS accused complainant of
wanting to have everything his way. Then 2LS stormed out of the room,
yelling, �This staff meeting is over. F*** all of this!�
On January 4, 2002, complainant asked 1LS for help with entering
compliance data, and was attacked for not knowing how to perform
the task. 1LS told complainant, �you should know how to do the task,
[sic] I tried to train you [sic] but you don't want to be trained.�
On January 7, 2002, complainant asked 1LS for help with entering a
discharge into the automated system. She refused to help, and later
accused complainant of being incompetent.
On January 10, 2002, complainant sought 1LS's assistance, but she
admitted that she had not been trying to help complainant because of
prior altercations.
On January 15, 2002, 2LS asked a coworker who was returning from sick
leave how she was doing. Although complainant also was returning from
sick leave, 2LS never greeted complainant or asked about his well being.
On January 16, 2002, 2LS met with complainant to express his concerns
about complainant's conduct. 2LS informed complainant that he was not
working cooperatively with others, was responsible for the unit failing
to work as a cohesive team, was not working fast enough, exhibited poor
interpersonal skills, and appeared more interested in blaming others
than in attempting to solve problems.
On January 22, 2002, 2LS issued complainant a memorandum regarding his
job performance and conduct. He informed complainant that the memorandum
was being issued in part because an employee complained to management
about complainant's conduct at the December 21, 2001 staff meeting.
On February 11, 2002, complainant received an interim performance
appraisal lowering his rating to �met� in three categories. When
complainant attempted to defend his performance, 2LS told complainant
that he did not want to hear what complainant had to say. 2LS accused
complainant of having a bad attitude, and threatened to fire him if it
did not change.
As an initial matter, the Commission finds that the agency improperly
identified complainant's claims in (a) - (c), above. The complaint is
more properly identified as outlined in (1) - (11), which identifies
all of the incidents in complainant's claims.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability, or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Complainant's receipt of his performance appraisal, as alleged in claim
(1), states a claim. Further, the matter has not been rendered moot.
To determine whether the issues raised in complainant's complaint are
moot, the fact finder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for a
determination of the rights of the parties is presented. Complainant's
performance appraisal from claim (1) was never changed to reflect the
rating complainant believed he deserved. Therefore, the issue cannot
be considered moot.
In claim (10), complainant raises another matter that states an
independent claim of discrimination. Complainant received written
discipline for his conduct, and the discipline was placed in his
supervisor's file. The issue is not moot, because the agency has not
shown that the memorandum was removed from the supervisor's file or
otherwise destroyed. Therefore, the agency's dismissal of claim (10)
was improper.
Although complainant raised appraisal issues again in claim (11), this
matter was properly dismissed. The agency may dismiss claims alleging
�that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory.� 29 C.F.R. �
1614.107(a)(5). Complainant's interim performance appraisal from claim
(11), unlike his final appraisal raised in claim (1), is a proposal to
take a personnel action. See Jackson v. Central Intelligence Agency,
EEOC Request No. 05931177 (June 23, 1994) (�performance improvement
plan� is properly dismissed as proposed action). In the present case,
the record does not show, nor does complainant assert, that the interim
appraisal was placed in complainant's official personnel file. Therefore,
the dismissal of claim (11) is proper.
Complainant's remaining claims involve meetings or altercations
with either 1LS or 2LS. Complainant believes that the treatment he
received in these altercations amounted to an actionable hostile work
environment. The Commission disagrees. Harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). 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. Even when complainant's altercations
with 1LS and 2LS are considered together, they do not amount to a hostile
work environment. Therefore, the agency's dismissal of claims (2) -
(9) for failure to state a claim was proper. Furthermore, the complaint
taken as a whole is insufficient to state a claim of harassment.
CONCLUSION
Accordingly, the agency's dismissal of claims (1) and (10) is REVERSED,
and these claims are REMANDED for further investigation. The agency's
dismissal of claims (2) - (9) and (11) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (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 (T0900)
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 (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
July 23, 2003
__________________
Date