0120112342
02-23-2012
Linda C. Gross, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Linda C. Gross,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120112342
Agency No. DFAS-00042-2011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 22, 2011, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the
Commission finds that Complainant's complaint was improperly 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 Financial Systems Analyst in the Information Technology Services
Directorate at the Defense Finance and Accounting Service facility in
Indianapolis, Indiana. On March 16, 2011, Complainant filed an EEO
complaint alleging that the Agency subjected her to discrimination and
a hostile work environment on the bases of sex (female), disability,
age (62), and in reprisal for prior protected EEO activity when:
1. On January 20, 2011, she was verbally counseled about her work
performance and accused of falsifying her resume; and
2. On March 18, 2011, she received Notice of Proposed Removal.
On February 22, 2011, the Agency dismissed Complainant’s complaint.
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Agency determined that Complainant failed
to show that she was aggrieved as a result of the alleged discriminatory
incident. Thus, the Agency found that claim (1) failed to state a claim.
Regarding claim (2), the Agency found the single incident of receiving
the Notice of Proposed Removal was not sufficiently severe or pervasive to
rise to the level of a hostile work environment. As a result, the Agency
dismissed claim (2) for failure to state a claim. Complainant submitted
no arguments or contentions 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 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. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994).
A fair reading of Complainant’s complaint and the related EEO
counseling materials reveals that Complainant is alleging a pattern of
harassment culminating in her receiving a notice of proposed removal.
The Commission has held that where a complaint does not challenge
an agency action or inaction regarding a specific term, condition,
or privilege of employment, the claim may still survive as evidence of
discriminatory harassment if the actions complained of are sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23
(1993). Whether the harassment is sufficiently severe to trigger a
violation of EEO statutes must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with an employee's work performance.
See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). In determining whether a harassment
complaint states a claim, the Commission has repeatedly examined whether
the allegations, when considered together and assumed to be true,
are sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. Nat’l Aeronautics and Space Admin., EEOC
Request No. 05970388 (Febr. 26, 1999).
In addition, the Commission notes that Complainant has raised an
allegation of retaliation. The Commission has a policy of considering
reprisal claims with a broad view of coverage. See Carroll v. Dep’t 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.
Applying these principles, the Commission finds that Complainant has
stated a viable claim of discriminatory and retaliatory harassment that
requires further investigation and processing. Accordingly, the Agency's
final decision dismissing Complainant's complaint is REVERSED, and the
complaint is REMANDED in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (Nov. 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
February 23, 2012
Date
2
0120112342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120112342