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