0120122537
11-05-2012
Tonya L. Lemke, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Tonya L. Lemke,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120122537
Agency No. HS-TSA-21224-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 24, 2012, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Transportation Security Officer at the Outagamie County Regional Airport in Appleton, Wisconsin.
On February 7, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination in reprisal for prior protected activity (complaints of management misconduct) when:
1. on October 14, 2011, she was informed that she was not selected for the Supervisory Transportation Security Officer (STSO) detail position; and
2. on October 14, 2011, she was informed that she was not selected for a permanent STSO position advertised under Job Announcement # ATW-11-387365.
On April 24, 2012, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency determined that Complainant claimed reprisal as the sole basis of discrimination in the formal complaint. However, the Agency determined that there was no evidence that Complainant had engaged in any prior protected activity.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Agency Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order to establish discrimination based on retaliation, an individual must initially be able to show that he or she engaged in prior EEO activity based on 29 C.F.R. � 1614.101(b).
A review of the pre-complaint documents and the formal complaint reflect that Complainant determined that the reprisal stems from holding her "back from promotions due to grievances and whistleblower complaints to the OIG [Office of Inspector General]." Complainant's claim of reprisal based on grievances and whistleblower activities, standing alone, lacks the requisite prior EEO activity necessary for stating a reprisal claim. As reprisal was the sole basis raised, the dismissal of the formal complaint was proper.
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED.
Finally, we note that Complainant, on appeal, raises new claims that she was issued a Letter of Proposed Removal and that she was harassed, targeted and retaliated against by Agency management and supervisory staff. These new claims were not previously raised by Complainant and it is inappropriate for Complainant to raise them for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims for the first time on appeal, she should initiate contact with an EEO Counselor.
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 (November 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 (S0610)
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 (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
November 5, 2012
__________________
Date
2
0120122537
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122537
5
0120122537