Leslee A. Owens, Complainant,v.Linda M. Springer, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionJun 14, 2007
0120072141 (E.E.O.C. Jun. 14, 2007)

0120072141

06-14-2007

Leslee A. Owens, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.


Leslee A. Owens,

Complainant,

v.

Linda M. Springer,

Director,

Office of Personnel Management,

Agency.

Appeal No. 0120072141

Agency No. 2007011

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 27, 2007, dismissing her 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. In her

complaint, complainant alleged that she was subjected to discrimination

and harassment on the basis of reprisal for prior protected EEO activity.

As to her claim of discrimination (claim 1), she alleged that, from April

24, 2006 through August 4, 2006, the agency's investigation into her

prior complaint was biased and incomplete. Furthermore, she asserted

that from December 6, 2006 through January 17, 2007, the agency did

not conduct an appropriate informal counseling in the instant matter.

As to complainant's claim of harassment (claim 2), complainant alleged

that the following events occurred in support of her claim:

a) On August 22, 2006, complainant received a verbal warning accompanied

by a threat of increased scrutiny by management. In addition, the agency

did not address problems until months after they were raised;

b) On September 7, 2006, she received an allegedly threatening visit by

her second-line supervisor; and

c) On January 17, 2007, during a training class, the instructor did not

permit complainant to sit next to a specific co-worker.

The agency dismissed the complaint. As to claim (1), the agency

determined that complainant was alleging a claim of discrimination

based on the processing of her previous complaint. As such, the agency

dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(8). As for claim

(2), the agency divided the events. The agency dismissed events (a) and

(b) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor

contact. The agency then dismissed event (c) for failure to state a

claim pursuant to 29 C.F.R. � 1614.107(a)(1).

Complainant appealed the agency's dismissal.

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. 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).

We note that, instead of treating events (a)-(c) as supporting her

claim of harassment, the agency looked at them individually. Thus,

we find that the agency acted improperly by treating matters raised in

complainant's complaint in a piecemeal manner. See Meaney v. Department

of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency

should not ignore the "pattern aspect" of a complainant's claims and

define the issues in a piecemeal manner where an analogous theme unites

the matter complained of). However, in viewing the events as a whole, we

find that complainant failed to state a claim of retaliatory harassment.

Therefore, we dismiss complainant's single claim of harassment pursuant

to 29 C.F.R. � 1614.107(a)(1).

EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that such complaints

must be dismissed. As for claim (2), we find that the complaint at hand

alleged dissatisfaction with the agency's processing of complainant's

prior EEO complaint. The appropriate action for the agency in such a

situation is to refer complainant to the agency official responsible

for the quality of complaint processing, and that official should

address the matter. Complainant may still contact the EEO Director

regarding any dissatisfaction with the EEO counseling she received,

but it will not affect our disposition of this complaint. Therefore,

to the extent complainant alleged dissatisfaction with the processing

of her prior complaint, we find that the agency properly dismissed the

complaint pursuant to 29 C.F.R. � 1614.107(a)(8).

We also note that complainant asserted dissatisfaction regarding the

informal processing of the instant complaint. As the agency correctly

found, this does not state an independent claim, but will be considered

by the Commission when adjudicating the instant complaint in order to

determine whether the alleged improper processing has had a "material

effect" on the complaint. See Equal Employment Opportunity Commission's

Management Directive-110, p. 5-25 to 5-26 (November 9, 1999). In support

of her claim that the agency's informal processing was inadequate,

complainant indicated that the EEO Counselor failed to meet with the

witnesses she had asked to be interviewed regarding the instant complaint.

As such, complainant argued that she was denied the opportunity to

resolve the matter at the lowest level. Upon review of the record,

we find that complainant has not identified how the counseling she

received materially effected the processing of her underlying complaint.

Although she asserts she was denied information from certain witnesses,

she does not identify this information with sufficient specificity or

show how information from her own witnesses was needed to resolve the

matter at hand. Therefore, based on the evidence available, we cannot

conclude that the EEO counseling she was provided materially affected

the instant complaint.

Therefore, upon review of the record, we AFFIRM the agency's final

decision dismissing the complaint at hand.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

June 14, 2007

__________________

Date

2

0120072141

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120072141