0120121036
05-24-2012
Christine Upner, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Christine Upner,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121036
Agency No. ARTACOM11AUG03643
DECISION
Complainant filed a timely appeal with this Commission from a final Agency decision (FAD) dated December 6, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Repairer at the Agency's Anniston Army Depot in Anniston, Alabama. On October 5, 2011, she filed a formal complaint alleging that the Agency discriminated against her based on her race (White), sex (female), and disability when:
1. In 2009, the Acting Branch Chief, DP-VSB, her first line supervisor at the time (S1), told her that he did not think she deserved her position.
2. In April 2011, the 2nd Vice President, AFGE Local 1945, told her "a Black woman should have your job. I'll get you one day. Black pride, bitch."
3. On April 14, 2011, the Branch Chief, DP-SRSB, her co-worker, told another of her co-worker's that "she [Complainant] fucked her way up to [work in building] 411. I don't want any women working in my office, because I don't want to give the impression that [S2, Complainant's second line supervisor] and she [the Complainant] did."
4. On May 9, 2011, the Director of the Security Management Office tried to ruin her reputation by manipulating S2 (and four other supervisors) into admitting allegations raised in the 15-6 investigation were true.
5. On May 16, 2011, she became aware that the Deputy to the Commander, ANAD (Deputy), ordered the 15-6 investigation concerning S2, which included an allegation of an improper relationship between S2 and Complainant. The conduct of the 15-6 investigation caused her co-workers to harass her.
6. In June 2011, S1 approved her request to work overtime only if she served in Building 400, knowing she was not authorized to work in Building 400.
7. On August 8, 2011, S1 denied her request for an additional copy of her appraisal, due to the fact that he lost his copies of his employees' appraisals. Complainant requested an additional copy to substantiate her work ethic and dedication to the Agency for use in the 15-6 investigation.
8. On August 17, 2011, the Process Optimization Manager, Directorate of Production (S3, Complainant's third line supervisor) ignored her request to email management officials to clarify the subject of her meetings with him and the Deputy that resulted from an informal inquiry ordered by the TACOM LCMC Inspector General.
9. On August 17, 2011, the Deputy and the Business Manager of Production Operations (who was tasked with addressing Complainant's concerns) met with Complainant and her husband to close out the Inspector General inquiry. The Deputy told Complainant "If you were fat and ugly, and were not a hard worker, this [allegation that Complainant] had an inappropriate relationship with S2] would not have happened. There are jealous people here."
10. On August 18, 2011, S3 told Complainant "We fight EEO complaints every day, and we win."
11. On August 22, 2011, Complainant set up an appointment with an Employee Assistance Center counselor to seek help managing stress caused by meetings with the Deputy and S3 and their ignoring her emails [referenced in issues 8 and 9].
The Agency dismissed the complaint for failure to state a claim. It found that it did not rise to the level of actionable harassment. It found that issues 4 and 5 were a collateral attack on the on another administrative process (15-6 investigation). It found that some issues did not harm the terms and conditions of Complainant's employment. Specifically, on issue 6, the Agency found overtime was a privilege; on issue 7, it found Complainant could get a copy of her appraisal from CPAC or the Business Management Office; on issue 8 it found Complainant was not entitled to have S3 send emails; and it found issue 11 simply concerned Complainant making an appointment. The Agency also found that Complainant failed to timely initiate counseling on issues 1 through 6. It reasoned that Complainant initiated EEO counseling on September 1, 2011,1 beyond the 45 calendar day time limit on these issues.
On appeal Complainant, through counsel, contends that the Agency did not accurately define her complaint. She contends that when she filed her complaint she was not represented, and the Agency dismissed her complaint without an opportunity to contest the definition thereof. She contends that from the beginning of her employment in November 2006, there were widespread untrue rumors that she was having a sexual relationship with S2, and she frequently heard vile sexually offensive comments from her co-workers that she got her position and advanced because of this. Complainant writes that she alleged in her complaint that she was subject to a sexually hostile harassment over all her employment. She argues that her complaint rises to the level of actionable harassment, and the whole complaint is timely since a hostile work environment constitutes a single adverse employment action. Complainant contends that her complaint also states a viable claim of retaliatory harassment for opposing sex discrimination/harassment, and seeks to add this basis.
In opposition to the appeal the Agency writes that it consulted Complainant's law firm and attorney (who was identified as the representative in the complaint) in defining the complaint, and submits documentation supporting this. This culminated in a letter to Complainant's attorney dated November 8, 2011, defining the complaint as later set forth in the FAD, and asking that he confirm the accuracy of definition, which he did by letter dated November 22, 2011. The Agency argues that the FAD should be affirmed.2
ANALYSIS AND FINDINGS
On appeal, Complainant raises the basis of reprisal discrimination, which is permissible since she may add a basis on appeal. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970). However, because the Agency worked with Complainant in defining the issues in the complaint, and she confirmed through counsel that it was properly defined, we decline to redefine the issues on appeal.
We add that Complainant emphasized problems arising from the 15-6 investigation. In a letter dated September 26, 2011, which was apparently submitted with the complaint and/or to the EEO counselor, Complainant wrote that while she was picked on after S2 chose her for a Special Projects Crew in November 2010, she would tell people to bug off, and they never bothered her again or most would leave her alone. She indicated that the rumors and harassment resurged with the 15-6 investigation. Likewise, in a handwritten memo written for her EEO case detailing many of her allegations, Complainant concluded that all this occurred because of the 15-6 investigation.
The 15-6 investigation commenced in the Spring of 2011, and was about S2. According to Complainant, the union Vice President provoked the investigation by filing false charges against S2, which allegedly included the allegation that he was having a sexual relationship with Complainant and suggesting he showed her favoritism. Complainant contended that the investigator asked witnesses if they believed S2 was having an inappropriate relationship with Complainant, and hurtful rumors started flying. She alleged the investigation was improperly handled.
Complainant moved to a new direct supervisor in approximately August 2011. According to the counselor's report, S3 asked Complainant if there was any harassment since he talked to her supervision, and Complainant responded no. This occurred around August 2011, and Complainant does not raise any incidents which occurred after August 2011.
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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, 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.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department 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; see also Carroll.
We agree with the Agency that issue 1 fails to state a claim. It occurred long before the other issues in the complaint, and was separated by a period where there were few incidents of alleged harassment, i.e., Complainant indicated people properly responded to her intonations that they "bug off." Also, there is no indication that S1 attempted to remove Complainant from his supervision. Complainant was not harmed by this remark.
We also find that that the actions by the union Vice President fail to state a claim, i.e., issue 2 and allegedly being a catalyst for the 15-6 investigation starting. There is simply no indication in the record that the union Vice President, Complainant's co-worker, held any sway with management in job assignments. While the 15-6 investigation was very unsettling to Complainant, we find that she was not aggrieved in a term, condition or privilege of employment by the Agency's investigation into whether S2 engaged in wrongdoing, even though the alleged wrongdoing included whether S2 engaged in an inappropriate relationship with her and treating her with favoritism. According to Complainant, the 15-6 investigation found no evidence of wrongdoing, and Complainant was not disciplined as a result of the investigation. Accordingly, issues 4 and the portion of issue 5 regarding the 15-6 investigation itself fail to state a claim.
Complainant contended that as a result of the 15-6 investigation, or perhaps in some instances as a prelude thereto, people harassed her, i.e., issues 3, 5 and 9. We note that while issue 9 was an insensitive remark, it was not demeaning or insulting, and in fact included a compliment that Complainant was a hard worker. Complainant contended that when she went to building 400, people she did not know called her a whore, a slut, threw bolts at her, and made comments like her pussy must be really good. But she does not indicate when this occurred, how often, and over what duration. We find that Complainant has not shown that such incidents were sufficiently severe or pervasive to alter the conditions of her employment.
Contrary to the Agency's finding, issue 6, denial of overtime states a claim because overtime is a term, condition, or privilege of employment. Cobb v. Dept. of Treasury, EEOC Request No. 05970077 (March 13, 1997). The Agency also dismissed this claim for failure to timely initiate EEO counseling. Denial of overtime is a discrete event. Because Complainant has not identified any denial of overtime within 45 calendar days prior to her initiation of EEO counseling, issue 6 is dismissed for being untimely counseled. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
Issue 7 does not state a claim. It involved S1 misplacing appraisals of everyone, and hence not being able to give Complainant a copy. Complainant does not controvert the Agency's finding that she could have gotten a copy from other sources. We agree with the Agency that issue 8 does not state a claim because Complainant is not entitled to expect S3 to send an email. Likewise issue 11 does not state a claim since it is simply about Complainant making an appointment, not an action taken against her.
We find that issue 10 would not reasonably likely deter EEO activity. It was a statement that the Agency would defend itself in the EEO process if Complainant filed an EEO complaint, not a threat of an adverse or negative action. Likewise, we find that issues 1 through 5 and issues 7, 8, 9, and 11 would not reasonably likely deter EEO activity.3
Considering Complainant's harassment claim as a whole, we find it was not sufficiently severe or pervasive to state a claim. The incidents which are part of one claim all occurred over about a four month period. A number of them were not abusive or insulting in nature, i.e., incidents 7, 8, 9, 10, and 11. While Complainant viewed the 15-6 investigation (issues 4 and 5) against S2 as abusive and insulting, we decline to find it was so, given the charges made which allegedly prompted the investigation. While issues 1, 2, 3, and a portion of 5 all regard abusive type actions against Complainant, we do not find them sufficiently severe or pervasive to rise to the level of actionable harassment.
CONCLUSION
The FAD 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 24, 2012
__________________
Date
1 The Agency found that Complainant initiated EEO counseling on September 9, 2011. The counselor's report reflects that the correct date is September 1, 2011.
2 It also argues that Complainant untimely filed her brief, i.e., the appeal was filed on December 15, 2011, and the brief was filed on January 17, 2012, beyond the 30 day time limit. Because the 30th day to file the brief fell on Saturday, January 14, 2012, the brief was not due until the next business day, i.e., Tuesday, January 17, 2012 (Monday was Martin Luther King, Jr. Day, a federal holiday). 29 C.F.R. � 1614.604(d).
3 Because we have affirmed the Agency's dismissal of issues 1 through 5 for failure to state a claim, we need not address whether the Agency also properly dismissed these claims for failure to timely initiate EEO counseling.
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0120121036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121036