0120121752
03-12-2013
Andrea F. Heitzman, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Andrea F. Heitzman,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120121752
Agency No. DDFY12012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 18, 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 teacher at the Agency's Brittin Elementary School facility in Fort Stewart, Georgia.
On December 11, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian) and age (62) when:
a. From March 2011 through November 7, 2011, Complainant's Principal and the Agency's Instructional Support Specialist, spied on Complainant and visited her classroom to search for issues about which to harass Complainant;
b. Between August and October 2011, Complainant's Principal made negative statements about Complainant's classroom including, "Mr. Ajax needs to come in here" and "Mrs. H. what are you going to do about the clutter?"
c. Between August and October 2011, the principal came into Complainant's classroom on several occasions and interrupted her during instructional time;
d. Between August and October 2011, the Superintendent and Complainant's Principal showed preferential treatment toward another teacher by collaborating with that teacher instead of with Complainant about grade level chair issues;
e. On August 16, 2011, the Instructional Support Specialist entered Complainant's classroom and told Complainant that something was not right, that there was too much clutter and questioned Complainant about workstations;
f. In May 2011, Complainant's Principal told Complainant that she could not put anything on her classroom walls or white board because it would cause a fire hazard;
g. In April 2011, Complainant's Principal told Complainant to remove her refrigerator from her classroom even though she told him she had a doctor's note indicating that she needed to keep it for medical reasons;
h. In April 2011, the Instructional Support Specialist told Complainant and other teachers to be more like [named individual], by de-cluttering their classrooms and establishing workstations;
i. In April 2011, Complainant's Principal came into Complainant's classroom and told Complainant to empty her students' desks when there was no place else to put the students' books and supplies;
j. In April 2011, the Superintendant stated, "people that have been here at Brittin Elementary School too long are people who are too old;" and
k. On an unspecified date in 2011, the Instructional Support Specialist suggested that Complainant put up a math wall. Complainant alleges further, however, that after she put up the math wall, her Principal told Complainant he did not like it and called it graffiti.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant appeal followed.
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 mere is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment by creating a hostile or abusive work environment. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Upon review, we find that, for the most part, the actions complained of, assuming that they were proven true, are neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. We further find that the alleged activity was not reasonably likely to deter protected EEO activity. Accordingly, we find that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect 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).
However, we find that to the extent Complainant is alleging that she was denied a reasonable accommodation when the she was told she could not have a refrigerator in her classroom despite having a medical need for one, we find that she has stated a justiciable claim of employment discrimination. In that regard, we remand claim g to the Agency for processing in accordance with this decision and the Order below.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed in part, and reversed and remanded in part.
ORDER (E0610)
The Agency is ordered to process the remanded claim (claim g) 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 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
March 12, 2013
__________________
Date
2
0120121752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121752