0120132748
04-01-2014
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120132748
Agency No. GSA13COQ0045
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated June 3, 2013, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technology Services Manager at the Agency's facility in Washington DC. On May 3, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (digestive and bowel condition, endocrine disorder, musculoskeletal disorder, sleep disorder, anxiety disorder, and neurological and circulatory conditions) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. After submitting a request for a reasonable accommodation on January 2, 2013, no such accommodation has been granted; and
2. Since submitting her request, Complainant has been subjected to retaliatory harassment.
The Agency characterized the claims differently, listing each incident of alleged harassment separately. The Agency found that none of the claims stated a claim because Complainant was not harmed by the Agency's actions.
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 there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
With regard to claim 1, the Agency found that Complainant's reasonable accommodation request was still pending. We find that such a response addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's articulated reason for the action in dispute goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated justiciable claims under Title VII or the Rehabilitation Act. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Service, EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Service, EEOC Request No. 05910642 (Aug. 15, 1991). By alleging that she was denied a reasonable accommodation, Complainant states a valid claim under the Rehabilitation Act.
With regard to claim 2, the Agency fractured the claims and listed each individual incident of harassment separately, as follows;
1. [Complainant's] second tier supervisor insinuated and harassed [Complainant] about being AWOL after [Complainant's] immediate supervisor approved [Complainant's] medical leave absence;
2. [Complainant has] been harassed by the time keeper and [Complainant's] second tier supervisor about [Complainant's] leave status;
3. [Complainant's] second tier supervisor interfered in [Complainant's] ability to perform [Complainant's] job duties;
4. On March 22, 2013, [Complainant's] second tier supervisor denied [Complainant's] request for ad hoc telework; and
5. On January 24, 2013, the Agency requested extensive information from [Complainant's] physician.
The Agency found that none of the above incidents, when viewed individually, stated a claim because Complainant failed to show she incurred a harm or loss with respect to a term or condition of employment. We note initially that in addition to alleging discrimination based on disability, Complainant is also alleging retaliation. The "harm or loss" standard, however, does not apply to claims alleging retaliation. Instead, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
Furthermore, in Harris v. Forklift Systems, Inc., 510 U.S. 17. 21 (1993), the Supreme Court found that harassment is actionable, even absent a claim that an agency's action harmed complainant in a specific term, condition or privilege of employment, as long as the complainant can otherwise demonstrate that the conduct was engaged in with the purpose of creating a hostile work environment, and that the conduct is sufficiently severe or pervasive as to alter the conditions of the complainant's employment. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to sate a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). In the instant complaint, however, the Agency did not consider the incidents together as a whole.
After a careful review of the record, we find that Complainant states a claim of hostile work environment harassment. The Agency has provided reasons for some of the incidents and disputes Complainant's characterization of the others but, as with claim 1, such responses address the merits of the complaints without first having conducted an investigation as required by the regulations.
CONCLUSION
The Dismissal is REVERSED and the claim REMANDED to the Agency for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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.
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
April 1, 2014
__________________
Date
2
0120132748
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132748