0120091352
08-27-2010
Capeline S. McKinney, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Capeline S. McKinney,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120091352
Agency No. HS-08-TSA-005820
DECISION
On February 6, 2009, Complainant filed a timely appeal with this Commission from the Agency's Final Agency Decision (FAD) dated December 30, 2008, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. For the reasons that follow, the Agency's final decision is AFFIRMED in part and REVERSED in part.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency properly dismissed the complaint for failure to state a claim.
BACKGROUND
At the time of this complaint, Complainant worked as a Transportation Security Officer (TSO) at Los Angeles International Airport (LAX). Following EEO counseling, Complainant filed an EEO complaint on September 19, 2008. She alleged that the Agency, through two supervisors S1 (Caucasian female) and S2 (Caucasian male), harassed her and subjected her to a hostile work environment based on race (African American) and in reprisal for prior EEO activity when, in 2008: (a) on July 15, 2008, S1 refused to sign her overtime sheet and yelled at her; (b) on July 22, 2008, S1 questioned her overtime assignment; (c) on August 5, 2008, S1 and S2 stated she did not comply with their orders to end her cell phone call; (d) on August 12, 2008, S1 denied her request for a bag-check; and (e) on August 27, 2008, S1 told her to start her overtime assignment on time. The Agency dismissed Complainant's complaint for failure to state a claim.1
CONTENTIONS ON APPEAL
Neither party filed comments on appeal.
ANALYSIS AND FINDINGS
The Agency dismissed Complainant's complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1), which provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim.2 Agencies are required to accept complaints from aggrieved employees or applicants for employment who believe that the Agency discriminated or retaliated against them because of race, color, religion, sex, national origin, age, or disabling condition. See 29 C.F.R. � 1614.103; 29 C.F.R. � 1614.106(a). The Commission's federal sector case precedent defines an aggrieved employee as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In its FAD, the Agency concluded that Complainant failed to state a claim of racial and retaliatory harassment.
In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (Feb. 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. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No.05940695 (Feb. 9, 1995).
Harassment Based on Race
In this matter, we agree with the Agency that Complainant did not show she was aggrieved by the actions taken by the Agency. Even if taken as true, and considered together, we do not find that the actions of the Agency were sufficient to alter complainant's work environment so as to state a claim of harassment based on race.
Harassment Based on Reprisal
The EEO laws prohibit the Agency from interfering and discriminating against employees because of their prior protected activity and prohibit discrimination that is reasonably likely to deter protected activity by Complainant or others. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (anti-retaliation provisions seek to prevent employers from interfering with an employee's EEO activities). When an Agency manager or supervisor retaliates against an employee for engaging in protected activity through threats, harassment, or any other adverse treatment that is reasonably likely to deter such activity by that employee or others, it is a violation of the anti-discrimination laws. Id.
In this matter, Complainant alleged that S1 and S2 began to retaliate against her after July 4, 2008, the date she provided a written statement to management describing discriminatory remarks made by S2 to another TSO, in support of that TSO's EEO complaint. Participation in another employee's EEO activity, e.g., filing a charge, testifying, assisting, or participating in any part of the EEO process, is protected activity. See Section 8: Retaliation, EEOC Compliance Manual. Her allegations, if true, indicate that her supervisors engaged in retaliatory harassment. Such actions, by superior officials, would have a chilling effect on Complainant's (and/or other employees) option to exercise rights in the EEO process in the future. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (a primary purpose of anti-retaliation provisions is maintaining unfettered access to statutory remedial mechanisms); Burlington Northern, 548 U.S. at 54.
Based on the foregoing, we find that Complainant has stated a claim of retaliatory harassment, i.e., alleged that S1 and S2 engaged in conduct likely to have a chilling, or deterrent, effect on an employee's participation in protected EEO activity. Given the Agency's failure to properly counsel Complainant,3 we will remand this claim for the Agency to being processing anew, starting with competent EEO counseling, to be followed by any necessary processing of the claim.4
CONCLUSION
For the foregoing reasons, we AFFIRM the Agency's final decision as to the claim of harassment based on race; REVERSE as to the claim of harassment based on retaliation; and REMAND the claim based on retaliatory harassment for further processing in accordance with this decision. The Agency is directed to comply with the Order below.
ORDER (E0610)
A. The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. 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.
B. 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
August 27, 2010
Date
1 The EEO Counselor's Report does not comply with the Commission's Regulation 29 C.F.R. � 1614.105. The only incident examined was one that is not raised in the complaint. Neither does the report show that the Counselor communicated with Complainant, S1, or S2. For more detailed instructions on the EEO counseling process, see EEO Management Directive 110 (Nov. 9, 1999), Chapter 2, "The EEO Counseling Process."
2 All documents and other information are available on the Commission's website at http://www.eeoc.gov.
3 See n. 1, above.
4 The FAD before us does not comply with EEOC Regulation 29 C.F.R. � 1614.110(b), which requires that an Agency's dismissal action include "the rationale for dismissing any claims in the complaint." Here, the FAD recited the law without application to the facts. It also failed to accurately state the law of harassment based on reprisal, and it did not address the question of deterrence.
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0120090857
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013