0120121907
08-20-2012
Valerie C. Amos, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Valerie C. Amos,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120121907
Agency No. HSTSA017582011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 9, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the Agency's facility in Houston, Texas.
On November 1, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to ongoing harassment on the basis of reprisal when a manager denied her request to work specific hours; a manager slammed her hand on Complainant's desk and threatened her with a letter of reprimand; she was falsely accused of making derogatory statement's about a co-worker's husband and child; she was not given an opportunity to defend herself when she was accused of openly discussing Sensitive Security Information; management removed her from her detail position; and management ignored the reports she brought forward about the other management's staff alleged incidents of misconduct.
The Agency dismissed the matter for failure to state a claim, noting she was not alleging reprisal based on prior protected EEO activity. The instant appeal followed. In her appeal, Complainant reiterates events and indicates she suffered damages from the Agency's actions.
ANALYSIS AND FINDINGS
In this case, an examination of Complainant's formal complaint reveals that the sole basis of the alleged harassment was reprisal because she was "part of the union" and because she opposed management's "unfair" work schedule bidding process that allowed bidding by rank rather than seniority. An examination of the related EEO counseling report shows that Complainant alleged reprisal "for exposing wrong doing concerning bid process." On appeal, Complainant gives no other basis for her complaint except that she believes she was retaliated against by management because, as an F-band employee, she opposed the way the bid process was run, and because she was a member of the union.
We find that the Agency properly dismissed the complaint alleging ongoing harassment based on reprisal. Section 704(a) of Title VII prohibits discrimination against a person "because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." The record here provides no indication that Complainant is alleging reprisal for past participation in the EEO process or for opposing an employment practice that allegedly violated the anti-discrimination laws. In this case, it appears that Complainant's opposition to the bid process was based on rank or seniority factors, and not because it discriminated against employees due to race, national origin, color, sex, religion, age or disability. As such, her instant complaint fails to state a viable claim of reprisal under to 29 C.F.R. Part 1614 process.
i
In addition, although Complainant claims to have suffered damages as a result of the incidents at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture, EEOC Appeal No. 01961499 (November 3, 1997).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
August 20, 2012
__________________
Date
2
0120121907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121907