0120093368
05-30-2012
Timothy Lemay, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Timothy Lemay,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120093368
Agency No. BOP-2008-0627
DECISION
Complainant timely filed an appeal with this Commission from the Agency's decision dated November 5, 2008, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Corrections Officer at the Agency's Federal Medical Center facility in Lexington, Kentucky. Complainant contacted an EEO Counselor on August 13, 2008, to allege that the Agency had discriminated against him on the bases of race (Caucasian), color (White), sex (male), and reprisal. On September 11, 2008, he received a Notice of Right to File a Discrimination Complaint.
In a September 24, 2008, "Report of EEO Complaint," Complainant identified the following allegedly discriminatory events:
1. a Food Service Foreman addressed Complainant in an argumentative tone on July 10, 2008, and a Lieutenant berated Complainant in the presence of two other correctional officers on July 14, 2008; and
2. Complainant received performance log entries of "minimally satisfactory" in Communication and Following Security Procedures on July 20, 2008, and "minimally satisfactory" in Following Security Procedures on August 12, 2008.
The Agency acknowledged receipt of the complaint on October 3, 2008.1
On November 5, 2008, the Agency dismissed the complaint for failure to state a claim. The Agency reasoned that, with respect to claim 1, Complainant was not aggrieved because he had not suffered a present harm or loss involving a term, condition, or privilege of employment. In that regard, the Agency noted that a few isolated incidents that are not sufficiently severe or pervasive to alter the conditions of employment do not state a claim of harassment. With respect to claim 2, the Agency stated that a performance log entry is only a preliminary step to taking a personnel action and does not create a personal harm.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his allegations concerning claims 1 and 2. In addition, he asserts that, in August 2008, he told a Captain that two Lieutenants were harassing him. He also asserts that there were problems with an "outcount" from Central Clinic on September 10, 2008, and, on September 11, 2008, he was removed from his post as a Control Center Officer and assigned to a different unit. He argues that other Corrections Officers were treated more favorably under similar circumstances and alleges that the Agency singled him out because he had contacted an EEO Counselor.
The Agency raises no arguments on appeal.
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, disability, or prior EEO activity. 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
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 harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (Feb. 9, 1995).
Applying this standard, the Commission finds that Complainant's complaint fails to state a claim because Complainant has not shown that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. The two matters cited in claim 1 are isolated incidents that did not involve a concrete agency action or otherwise result in a present loss or harm. With respect to claim 2, we note that the Commission has held that a performance log entry is a preliminary step to taking a personnel action and a claim based on such an entry is properly dismissed. White v. Dep't of Justice, EEOC Appeal No. 01A35308 (Apr. 22, 2004), req. for recon. denied, EEOC Request No. 01A40835 (June 16, 2004); see also Mercedes v. Dep't of Justice, EEOC Appeal No. 0120081347 (Apr. 11, 2008).
Moreover, we find that both claims, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Further, the alleged actions were not of a type reasonably likely to deter Complainant or others from engaging in protected activity. As a result, the Commission finds that the Agency properly dismissed these claims.
Finally, we note that, on appeal, Complainant alleges that the Agency discriminatorily removed him from his post as a Control Center Officer and assigned him to a different unit on September 11, 2008. This new claim was not the subject of EEO counseling, and Complainant did not raise it in his September 24 or November 12, 2008, submissions to the Agency. It is not appropriate to raise this claim for the first time on appeal.2
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
May 30, 2012
Date
1 In an October 20, 2008, e-mail to Complainant and the EEO Counselor, an EEO Specialist asked Complainant to complete a Complaint of Discrimination form. In the completed form, which the Agency received on November 12, 2008, Complainant alleged reprisal discrimination with respect to allegations 1 and 2.
2 Should complainant wish to pursue this claim, he should initiate EEO Counseling thereon. For timeliness purposes, the date of initial contact is deemed to be the date on which the instant appeal was filed, unless Complainant can show that he initiated counseling on this claim an earlier date.
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0120093368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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