0120170911
03-31-2017
Tasia C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tasia C.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120170911
Agency No. DECA001512016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 1, 2016, dismissing her complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Store Associate in the Produce Department at the Agency's Hunter Army Air Field (AAF) Commissary facility in Hunter Army Air Field, Georgia.
Complainant contacted an EEO Counselor on July 18, 2016. She alleged that she had been subjected to a discriminatory hostile work environment based on her race (black), sex (female) and age 57 by the Produce Manager (white female). In support of her claim, Complainant alleged that on June 18, 2016, the Manager "made reference to white superiority by extending her hand (as in a Nazi salute), stating 'white power.'" She also told the EEO Counselor that on July 16, 2016, the Manager told Complainant that the Manager's grandson was "all white," after Complainant showed the Manager a picture of Complainant's mixed-race grandchild.
On October 18, 2016, Complainant filed a formal EEO. In addition to the two incidents described to the EEO Counselor, in her formal complaint, Complainant alleged that the Manager was also hostile to her other black female coworkers, sometimes referring to them as a "bitch"2 or calling them "stupid." She also asserted that the Manager stated that she wished one of the coworkers would get into a wreck and die, and hit another in the head. Finally, she alleged that the Manager visibly favored the sole male employee (also younger than Complainant) in the Produce Department, especially with regard to time and attendance issues, leave and the schedule.
The Agency issued a final decision dismissing the complaint for failure to state a claim. The Agency reasoned that Complainant failed to allege that she suffered a personal loss or harm with respect to a term, condition, or privilege of employment. The Agency also dismissed an allegation regarding a reprimand in Complainant's 2012 performance evaluation, reasoning that her EEO contact was untimely.
This appeal followed.
ANALYSIS AND FINDINGS
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. Thus, not all claims of harassment are actionable. Here, we find, viewing the allegations together and assuming they occurred as alleged, that Complainant has stated a viable claim of a discriminatory hostile work environment and the Agency erred in dismissing the claim.
A fair reading of the EEO Counseling Report, in conjunction with the letter attached to the complaint, revealed the essence of Complainant's claim was that she was being subjected to ongoing disparate treatment and hostility because of her race, sex and age discrimination. The Commission has found that, in order to clearly define the issues of a complaint, the Agency should not only look at a formal complaint, but also consider the EEO counseling documents. Melissa H. v. Dep't of the Army, EEOC Appeal No. 0120161158 (May 18, 2016). Complainant reported to the EEO counselor that she was subjected to a hostile work place, tainted by racist and sexist remarks and actions that gave favored treatment to the younger male employee, and that the Agency failed to take effective action to address the situation. We find that the statements are sufficient to allege a violation of Title VII and the Age Discrimination in Employment Act. Both laws require that federal agencies make all of their actions free of discrimination on the basis of race, sex and age.
For these reasons, we find that the Agency improperly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.3
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claim (hostile work environment) 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.
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 (M0416)
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 tends 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 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. The requests 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 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
March 31, 2017
__________________
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 In her statement on appeal, Complainant asserted that the Manager also called her a "bitch."
3 To the extent that Complainant's 2012 performance evaluation is being raised as a separate claim, we affirm the Agency's dismissal on timeliness grounds. However, it may be considered as background evidence to Complainant's hostile work environment claim.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170911
5
0120170911