01A04253
04-26-2001
Richard D. Mauck, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Richard D. Mauck v. Department of Transportation
01A04253
April 26, 2001
.
Richard D. Mauck,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A04253
Agency No. DOT 6-00-6049
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint
dated March 2, 2000, the complainant alleged that he was harassed and
discriminated against on the bases of his religion (fundamentalist
Christian) and reprisal<1> (prior protected activity under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.) on
various occasions in January, 2000, when a subordinate employee (CW)
was continuously insubordinate and management thwarted complainant's
attempts to discipline CW.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed by the agency as a Supervisory Air Traffic Control Specialist
at the agency's Automated Flight Service Station in Prescott, Arizona.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, when counseling was unsuccessful, complainant filed
a formal complaint, claiming discrimination on the bases described
above. The agency dismissed the complaint on the grounds that complainant
had failed to state a claim. From this decision, complainant now appeals.
Complainant avers that the following incidents occurred:
on January 21, 2000, the facility Air Traffic Manager (RO 1) told
complainant that CW had not been working with complainant as he should
have since April 1997 because CW was upset with complainant due to
complainant's religious beliefs;
also on January 21, 2000, RO1 told complainant that, in the past year,
a facility union representative (FUR) and seven coworkers had gone
together to RO1 and had complained about complainant due to complainant's
religious beliefs;
on January 21, 2000, complainant informed RO2 that the workplace situation
with CW made it impossible for complainant to do his job;
on January 31, 2000, in the presence, and under the direction of RO1,
RO2 ordered complainant to work the watch desk in the operations area,
as complainant normally did, and threatened complainant with disciplinary
action if complainant did not comply;
on January 31, 2000, in the presence, and under the direction of RO1,
RO2 ordered complainant to work with CW in a professional manner, as
complainant normally did, and threatened complainant with disciplinary
action if complainant did not comply;
on January 31, 2000, in the presence, and under the direction of RO1,
RO2 ordered complainant to correct CW on the spot when necessary, as
complainant normally did, and threatened complainant with disciplinary
action if complainant did not comply; and
on January 31, 2000, RO3 told complainant the management would take no
action against CW, despite earlier promises to do so.
ANALYSIS AND FINDINGS
After a thorough review of the record, the Commission finds that,
as regards the issue of religious harassment, the complaint fails to
state a claim under 29 C.F.R. Part 1614 because the allegations, even
if proven to be true, would not indicate that complainant has been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of his employment. Moreover, the complaint does
not otherwise challenge an unlawful employment policy or practice.
See Cobb v. Department of the Treasury, Request No. 05970077 (March
13, 1997). EEOC Regulation 29 C.F.R. � 1614.107(a) provides that an
agency shall dismiss a complaint, or portion of 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;
1614.106(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. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
The record fails to show that complainant has suffered a harm or loss
with respect to a term, condition, or privilege of employment due to the
actions of CW, RO1, RO2, or the agency. While RO2 allegedly threatened
complainant with disciplinary action on January 31, 2000, the Commission
has repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996);
Henry v. U.S. Postal Service, EEOC Request No. 05940695 (February 9,
1995). According to the record, the supervisor's comments were not
followed by any concrete agency action.
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. 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. Thus, not all claims of harassment are
actionable. 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.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state a
claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). In the instant case, we find that all of the incidents
cited in the entire complaint are not sufficient, when examined in their
entirety, to state a claim of harassment.
As noted above, the behavior of RO 1 and RO 2 did not result in
concrete agency job actions. As regards CW, while complainant has
stated in general terms that CW has been incommunicative, disrespectful,
insubordinate, incorrigible, disruptive of the workplace, and refused
to follow orders, complainant has described only actions that can at
worst be described as unprofessional, but hardly amount to harassment of
complainant by CW. While he has described CW throwing a �temper tantrum�
when his leave request was denied, making leave requests at short notice
and in an inappropriate manner, failing to understand how annual leave
is granted, not using the appropriate chain of command, and failing
to meet the required standards in his yearly performance evaluation,
complainant has not described any specific incident demonstrating
that CW's behavior was sufficiently severe or pervasive to alter the
conditions of the complainant's employment. Nor has complainant shown
that such behavior was due to any religious animus CW may have felt
towards complainant. Indeed, complainant concedes that CW has never told
complainant that his behavior was due to his hostility to complainant's
religious beliefs. Furthermore, complainant has stated that CW has
a negative attitude towards several co-workers, not just complainant.
The evidence therefore does not indicate that CW submitted complainant
to harassment based on complainant's religion.
Nor has complainant shown that, as regards the issue of reprisal,
the allegations, even if proven to be true, could be construed as
demonstrating an intent to deter a reasonable person from pursuing the
EEO process. As regards the behavior of CW, we are unpersuaded that
a subordinate employee would be motivated to seek reprisal against a
supervisor due to the supervisor's filing of an EEO complaint against
the agency. Nor do the threats by RO 2 amount to reprisal, since as noted
above, absent a concrete agency action, threats of action are not a direct
and personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo, EEOC Request No. 05960227; Henry,
EEOC Request No. 05940695. According to the record, the supervisor's
comments were not followed by any concrete agency action. Moreover,
the complaint does not otherwise challenge an unlawful employment policy
or practice. Compare Stup v. United States Postal Service, EEOC Request
No. 05990465 (April 11, 2000).
We note that in his appeal to the Commission, complainant argued for
the first time that the handling of his EEO claim by the agency was
unfair and biased. We note that complaints about the processing of
existing complaints should be referred to the agency official responsible
for complaint processing, see EEO MD 110, Chapter 5-14, section III,
subsection F. We therefore decline to address the issue here.
In view of the above, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date
1 As a preliminary matter, we note that while complainant marked
�reprisal� as the basis for his complaint when completing his formal
complaint form, he has also argued at length that both reprisal and
religious harassment form the bases of his complaint. In addition,
the agency's final agency decision discussed both bases. Accordingly,
we shall address both bases in the present case.