0120130117
02-26-2013
Carolyn C. Bennett, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carolyn C. Bennett,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130117
Hearing No. 551-2011-00136X
Agency No. ARLEWIS10JUN03100
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 12, 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 Employment Assistant Program Manager at the Agency's Joint Base Lewis-McChord facility in Pierce County, Washington.
On July 27, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when she was not included on an email distribution list regarding a job fair flyer; and when she was excluded from participating in a VIP tour with a headquarters visiting official in November 2010.
The Agency initially accepted the first claim and Complainant later amended it to include the second claim. Thereafter, the Agency proceeded with an investigation. Complainant requested a hearing. An EEOC Administrative Judge (AJ) granted the Agency's motion to dismiss for failure to state a claim. The AJ found that the evidence showed that someone in the Army's Child and Youth Services sent the email with the flyer and told the individuals to whom it was sent to further disseminate. The individual who sent the flyer was not in Complainant's chain of command. The flyer was eventually forwarded by others to Complainant and she opened it on June 10, 2010. The AJ found this was a "petty slight" that did not result in harm to Complainant. Additionally, the AJ noted that Complainant's EEO activity occurred seven years prior to this claim.
As to claim 2 regarding the VIP tour, the AJ found that the evidence showed that the headquarters VIP involved determined which sections she wanted to visit and was not aware of Complainant's EEO activity. This individual did not ask to see Complainant's section. The AJ found that Complainant did not suffer any harm and could not establish reprisal for EEO activity.
As such, the AJ dismissed the complaint for failure to state a claim. In its final order, the Agency adopted the AJ's decision. The instant appeal followed. In her appeal, Complainant asserts she suffered stress that caused her health problems.
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. 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).
As this is a claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id.
In the instant case, we agree with the AJ that the record complied during the investigation supports a finding that Complainant has failed to state a claim of reprisal. There is no evidence that the treatment she complains of was based upon a retaliatory motive or that it was reasonably likely to deter Complainant or others from engaging in protected activity. 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
February 26, 2013
__________________
Date
2
0120130117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130117