0220120004
05-21-2015
Agency.
Grievant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0220120004
Agency No. 11-068-IDR
DECISION
On January 19, 2012, Grievant filed an appeal from the Agency's December 20, 2011, decision concerning her grievance alleging 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
At the time of events giving rise to this complaint, Grievant worked as a Office Automation Assistant at the Agency's Privacy Information and Records Management Service Division located in Washington, D.C.
On November 14, 2011, Grievant filed a grievance alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on April 11, 2011, the Director of Personnel Security (Director) subjected her to unlawful harassment. In addition, Grievant asserted that the Personnel Security Division had subjected her to harassment. In support of her claim, she indicated that her Supervisor requested that she assist her in placing information into the FPPS system in November 2009. The record noted that Grievant had not been performing typing duties and had not logged into the FPPS system for some time. Grievant stated that she used an old password which did not allow her access to the FPPS system. Therefore, Grievant was required to ask for a new FPPS password. She filled the proper paperwork on or about November 9, 2009. The Personnel Security Specialist (Specialist) emailed Grievant to inform her that her background investigation was for low risk which was not sufficient for a new FPPS access. As such, Grievant was required to submit information to the Agency for a new background investigation. Grievant believed that these events constituted harassment.
At the conclusion of the investigation, the Agency issued a decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Grievant failed to prove that the Agency subjected her to harassment as alleged.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a Grievant may appeal to the Commission from a final decision of the Agency, the Arbitrator, or the Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the Grievant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
The record indicated that the Grievant filled out paperwork in November 2009, requesting access to the Agency's FPPS system. The Specialist responded to Grievant's request indicating that her background check was at a lower level than what was now required to set up a new FPPS access account. As such, the Specialist provided Grievant with the information that was required. Grievant then stated in her grievance that in April 2011, the Director subjected her to an incident which the Grievant found to have created a hostile work environment. Upon review of the record, Grievant failed to provide any further information regarding the allegedly harassing incident. Upon review, we find that Grievant has not established that alleged events constituted harassment. We note that the events in November 2009, involved Grievant's access to the FPPS system and the Specialist ensuring that the Grievant's background investigation was at the correct level for her access to FPPS. Grievant did not provide any information regarding the alleged incident with the Director in April 2011. As such, we cannot find that these events were severe or unreasonably interfered with Grievant's work performance and/or created an intimidating, hostile, or offensive work environment. Therefore, we conclude that the Grievant failed to show that she was subjected to harassment based on her prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's grievance decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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).
GRIEVANT'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 21, 2015
__________________
Date
2
0220120004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220120004