0120123050
01-07-2013
Barbara A. West, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Barbara A. West,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120123050
Agency No. HHS-CDC-0147-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 21, 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
During the period at issue, Complainant worked as an Operations Assistant, GS-7, at the Agency's Office of Financial and Administrative Services in Atlanta, Georgia.
On March 21, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of reprisal for prior EEO activity when:
1. on February 28, 2012, she was asked to give her supervisor a list of the work she had done from 2011 through 2012;
2. on January 20, 2012, she was advised that management told a co-worker to "keep his mouth shut" regarding the National Incident Management System training she was working on;
3. on December 23 and 28, 2011, she received an email from her supervisor stating that she needed to provide him with a Form 71 Leave Request;
4. in December 2011, the Management Officer stared at her in an intimating way;
5. she was denied a request for a Blackberry to offset the cost of her cell and home phone expenses;
6. on March 3, 2012, she learned that management made a decision in prior EEO activity that was not within their jurisdiction;
7. on February 16, 2012, after she inquired about a FOIA detail, the criteria for the position for which she showed interest had changed rendering her unqualified for the position;
8. on February 21, 2012, she received a "Fully Successful" performance rating; and
9. on February 21, 2012, her request to include her Commission Corps duties in her position description was denied.
The Agency dismissed claims 1 - 5 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment. The Agency further dismissed claims 6 - 9 on the basis that this matter was not raised in counseling and it was not like or related to a matter raised in counseling, pursuant to 29 C.F.R. � 1614.107(a)(2). Moreover, the Agency dismissed claims 1 - 9 pursuant to 29 C.F.R. � 1614.107(a)(5), on the alternative grounds of mootness.
Complainant, on appeal, argues that she is subjected to ongoing harassment. Complainant further argues when she has been on sick leave "for work related stress since February 27, 2012. May 4th, the stress brought on serious illnesses in form of, kidney failure, complications of diabetes resulting in uncontrolled blood sugar levels, Bell's palsy, and a diagnosis of Lupus. I lost my hair, broke out in a severe rash on my neck and arms, my vision was impaired, and my kidneys failed."
Further, Complainant states that on or around July 17, 2012, she experienced "a great deal of difficulty receiving my pay on time...I am being retaliated against and harassed by my supervisor. He delayed my VLTP paperwork by leaving it sit in his e-mail for more than a week. My most recent pay check was $150.00 because the paper work was delayed. Now that the voluntary leave has caught up with the system, he has not gone into the system to change or reenter my leave."1
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County v. Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
There is nothing in the record support a determination that it can be said with assurance that there is no reasonable expectation that the alleged violation identified in the instant formal complaint will recur. Indeed, we note that on appeal, Complainant asserts that she is not being paid accurately while on sick leave. We determine that the formal complaint has not been rendered moot, at a minimum, because the first prong of the Los Angeles v. Davis test has not been met.
The Agency's alternative grounds for reversal of claims 1 - 5 (failure to state a claim), is also improper, as Complainant has clearly alleged a personal loss or harm to a term, condition, or privilege of her employment, pursuant to EEOC Regulation 29 C.F.R. �1614.107(a)(1). See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Moreover, we find that the Agency improperly dismissed claims 6 - 9 on the grounds that Complainant did not seek EEO counseling regarding these matters, and that they are not like or related to matters for which Complainant underwent EEO counseling. We find that a fair reading of the Counselor's Report, as discussed above, reflects Complainant's claim of harassment was raised during EEO counseling. Moreover, to the extent that these matters were not expressly raised during EEO counseling, they are nevertheless like or related to matters for which Complainant underwent EEO counseling.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/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 claim 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 (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 (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
January 7, 2013
__________________
Date
1 VLTP is an acronym for Voluntary Leave Transfer Program.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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