0120171306
08-03-2018
Melissia M.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melissia M.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120171306
Agency No. 9X1M16029
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 17, 2017, 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. 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, and 29 C.F.R. � 1614.107(a)(5) for a proposed personnel action. For the following reasons, the Commission REVERSES and REMANDS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Technician at the Agency's Air Force Life Cycle Management Center in Wright-Patterson Air Force Base, Ohio. On October 27, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination, and harassment, on the basis of sex (female) when:
1. On May 2, 2016, Complainant's supervisor (S1) issued her a Notice of Proposed Suspension;
2. On May 2, 2016, S1 included previously settled issues with the Notice of Proposed Suspension; and
3. Since September 2015, S1 has continuously held her to a different standard than her male co-workers by expecting her to meet deadlines, while offering extensions to male co-workers.
On January 17, 2017, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. 1614.107. The Agency determined that a proposed action was subject to dismissal pursuant 29 C.F.R. 1614.107(a)(5). Additionally, the Agency dismissed claims 2 and 3 as failing to state a claim pursuant to 29 C.F.R. 1614.107(a)(1), finding that Complainant did not identify a concrete agency action that rendered her aggrieved.
Complainant filed the instant appeal. The Agency submitted a brief in opposition to Complainant's appeal on May 5, 2017.
CONTENTIONS ON APPEAL
With her appeal, Complainant submitted a packet of documents. We note that these documents are memos, emails and other work-related documents, and that Complainant has not made any arguments on appeal.
The Agency argues that it properly dismissed Complainant's complaint. Since Complainant has not made specific arguments on appeal, the Agency assumed that she was appealing the merits of the decision. The Agency stated that it properly dismissed claim 1 because it was a proposed personnel action. Additionally, it contends that it properly dismissed claims 2 and 3 for failure to state a claim.
ANALYSIS AND FINDINGS
Limited Inquiry
As an initial matter, we find that the EEO Counselor (Counselor) did not gather sufficient data pursuant to 29 C.F.R. Part �1614. In reviewing the record, there is no indication that Counselor conducted a limited inquiry to determine all the claims. See EEOC Management Directive 110 Ch. 2 �V (revised August 5, 2015).
According to the Counselor's Report, Counselor met with Complainant and her representative on June 2, 2016, for the initial interview. Counselor continued to email Complainant documents, and followed up to obtain the signed documents from her, as late as July 6, 2016.2 The next event is September 2, 2016, when Counselor sent Complainant a Notice of Right to File (NRTF) a formal complaint. It was returned as undeliverable, but Complainant eventually received a copy, and filed her formal complaint on October 27, 2016.
As part of the informal EEO process, Counselor was responsible for obtaining information to determine the claims. For claim 3, Counselor should have requested specific dates and details of any alleged discriminatory treatment with regards to work deadlines and extensions. A reasonable interpretation of the claim is that S1 denied Complainant's requests for extensions of her assignments, while granting extensions to her male co-workers. Additionally, Complainant alleged that she was subjected to harassment "continuously" from September 2015. There is no evidence in the record that Counselor made any attempts to follow-up with Complainant to obtain additional information during the approximately two months from her last email, to the date when she sent the NRTF.
Dismissal of Claims
We find that the Agency improperly dismissed claim 1 for alleging a proposal to take a personnel action. Proposed actions do not create a direct and personal deprivation which would make the complainant an "aggrieved" employee within the meaning of EEO Regulations. See Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991); Lewis v. Dep't of the Interior, EEOC Request No. 05900095 (Feb. 6, 1990). However, if a proposed action is purportedly combined with other acts of harassment to form an alleged pattern of harassment, the agency may not properly dismiss it as a proposed action. See Suttles v. USPS, EEOC Request No. 05970496 (April 8, 1999). In the instant matter, Complainant clearly alleged that she was subjected to a hostile work environment for all three claims.3 Accordingly, we find that Complainant's allegation of a hostile work environment sets forth an actionable claim, and that claim 1 was improperly dismissed because it is a part of the harassment allegation.
For claim 2, we agree that it alone does not set forth an independent claim. However, it should be considered as part of Complainant's hostile work environment allegation. As for claim 3, we find that Complainant alleged disparate treatment when it came to work deadlines, and harassment. Accordingly, we find the Agency's failure to conduct a limited inquiry to better determine the complaint, and subsequent dismissal of Complainant's complaint, was improper. See Cahill v. Dep't of Defense, EEOC Appeal No. 0120100689 (May 27, 2010).
We conclude that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, we REVERSE the Agency's dismissal of the claims, and REMAND Complainant's claims of hostile work environment and discriminatory denial of work extensions for further processing.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is vacated. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 3, 2018
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 These emails are not included in the record.
3 The Counselor's Report, Complainant's formal complaint, and the Agency's final decision all reference a hostile work environment allegation.
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