0120130206
03-08-2013
Carol J. Swink, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carol J. Swink,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130206
Agency No. ARANAD12JUN02532
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 11, 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 Supervisory Maintenance Parts Technician at the Agency's facility in Anniston, Alabama.
On August 20, 2012, Complainant filed a formal complaint alleging that she was being subjected to ongoing harassment because of her sex (female) and in reprisal for engaging in prior EEO activity by a union official (male) sufficient to create a hostile work environment. Complainant further alleged that agency management did not take adequate steps to stop the harassment. In support of her claim, Complainant cited the following incidents of alleged harassment:
1. On June 28, 2012, employees under her supervision told Complainant that the union official solicited them to write a statement against Complainant indicating that she mistreats her employees, and that she is not a good supervisor.
2. On June 28, 2012, an employee under Complainant's supervision told Complainant that the union official left a message on the employee's phone to call him because he wanted the employee to write a statement saying that Complainant denied the employee union representation when Complainant talked to the employee about being late.
3. On June 2, 2012, the union official came to see Complainant about the way that she charges leave to employees under her supervision. Complainant alleges that the colleague became loud and threatening during the conversation.
4. On June 12, 2012, one of Complainant's employees told Complainant that the union official asked him if he fills out leave forms and asked whether or not Complainant charged the employee leave.
5. On December 6, 2011, the union official called Complainant to tell her that one of her employees needed to go to the union hall for a fact-finding conference. Complainant alleges that during the conversation, the union official started to scream at Complainant saying, "Oh, you will listen to me, [Complainant]..." after Complainant advised the union official that the employee needed to attend a mandatory meeting.
6. In June 2010, Complainant completed paperwork to remove an employee who had been absent without leave for 5 months. Complainant alleges that the union official called her "hollering" about how the case was not over and advising Complainant that the employee would be appealing the decision.
7. On or about 2008, Complainant contacted Agency officials about protecting her from the union official and other union representatives allegedly soliciting complaints from Complainant's employees about Complainant as a supervisor. Complainant indicates that after contacting Agency officials about the matter in 2008, the union official's alleged harassing behavior stopped.
The Agency dismissed the complaint in its entirety for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1). The instant appeal followed.
ANALYSIS AND FINDINGS
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 there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Upon review, the Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant has not alleged that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. As the Agency correctly points out in its dismissal decision, the federal labor relations laws anticipate a degree of friction and robust debate between Agency managers like Complainant and union officials. None of Complainant's allegations, even considered together and assumed to be true, raise an inference of unlawful discrimination. Under the circumstances presented in this case, Complainant's concerns about her treatment by the union official are not appropriately addressed through the administrative EEO complaints process.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.
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
March 8, 2013
__________________
Date
2
0120130206
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130206