0120101897
07-01-2010
Burt T. Weyhing, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Burt T. Weyhing,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120101897
Agency No. HS09ICE007305
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated December 9, 2009, 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
During the relevant period, Complainant worked as a Deportation Officer
with Immigration and Customs Enforcement (ICE). In his complaint,
Complainant alleged that the Agency subjected him to harassment on the
basis of reprisal for prior protected EEO activity when: (1) on June 8,
2009, a supervisor "deliberately obstructed" and "actively discouraged"
Complainant's coworker friends from attending his going away party;
and (2) on July 13, 2009, a second supervisor (S2) mailed Complainant
a box containing the "packaged property of 3 aliens [Complainant] had
sent to Federal Prison for immigrations violations many months prior,"
which Complainant claimed to be "an outrageous violation of the rules
of maintaining alien property."
In its December 9, 2009 final decision, the Agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Complainant filed the instant appeal with this Commission.
ANALYSIS AND FINDINGS
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. An agency shall accept a complaint from any 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).
Alternatively, where a complaint does not challenge an agency action
or inaction regarding a specific term, condition or privilege of
employment, a claim of harassment is actionable only if, allegedly,
the harassment to which the complainant has been subjected was
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). It is also well-settled that harassment based on
an individual's prior EEO activity is actionable. Roberts v. Dep't
of Transportation, EEOC Appeal No. 05970727 (September 15, 2000).
Whether the harassment is sufficiently severe to trigger a violation of
Title VII must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993);
Enforcement Guidance on Harris v. Forklift Systems, Inc. (Guidance),
EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Guidance.
Further, the Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15.
Upon review, the Commission finds that the Agency properly dismissed
(1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1). The incidents do
not render Complainant aggrieved and do not rise to the level of severe
or pervasive to alter the conditions of his employment. Looking at
the totality of the circumstances surrounding the claims, they are not
objectively severe, threatening, humiliating, or frequent. Further,
while potentially upsetting, the claims were not such that they would
unreasonably interfere with the work performance of a reasonable person
in Complainant's circumstances.
Also, we find the allegedly harassing behavior of which Complainant
complains not reasonably likely to deter EEO activity. We note that
the behavior did not deter complainant from protected activity, namely
filing the instant formal complaint. It is clear that Complainant
is aware of his rights and chose to exercise them by commencing this
EEO action.
Based on the above, we find that the Agency properly dismissed both
incidents. Accordingly, we AFFIRM the Agency's final decision dismissing
the instant complaint.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 (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 (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
July 1, 2010
__________________
Date
2
0120101897
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120101897