Complainant,v.Dr. Ernest Moniz, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJul 15, 2014
0120141125 (E.E.O.C. Jul. 15, 2014)

0120141125

07-15-2014

Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.


Complainant,

v.

Dr. Ernest Moniz,

Secretary,

Department of Energy,

Agency.

Appeal No. 0120141125

Agency No. 13-0128-RL

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated January 16, 2014, 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 Physical Scientist at the Agency's Office of River Protection facility in Richland, Washington.

On July 22, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her complaint, Complainant indicated that the following events occurred:

1. On October 10, 2012, Complainant's co-worker (CW) brought up the topic of surveillance on a sodium fee payment. Complainant noted that she had raised this topic as an issue she was writing.

2. On October 17, 2012, Complainant submitted her Employee Concern Initiation form including the sodium fee surveillance.

3. On December 19, 2012, during a meeting, the CW intentionally made light of a situation by making statements that were false and contrary to what had been agreed upon previously regarding fee payments to a federal contractor. This made Complainant upset and she left the meeting. As she tried to leave the meeting, the CW stepped into Complainant's path and physically blocked her from exiting. He also grabbed her arms.

4. On January 22, 2013, Complainant requested a transfer to avoid the hostile work environment.

5. In March and April 2013, Complainant made repeated requests for a transfer.

In addition, Complainant asserted issues with the Agency's internal harassment complaint process as well as the EEO complaint process. She argued that the Agency's internal process failed to protect her from the continued harassment by the Agency's officials.

As an initial matter, the Agency asserted that Complainant raised six claims of discrimination. The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that Complainant failed to show that she was subjected to a harm. Further, the Agency noted that Complainant was transferred pursuant to a mediation agreement to a different field office and under a new senior management reporting chain. In addition, the Agency determined that Complainant did not seek compensatory damages. Therefore, the Agency found that the matter was moot and that the complaint could be dismissed pursuant to 29 C.F.R. � 1614.107(a)(5). The Agency also dismissed claims regarding the internal process pursuant to 29 C.F.R. � 1614.107(a)(1) as a collateral attack. The Agency then also dismissed the complaint as it was identical to Complainant's prior complaint that was filed on January 28, 2013. As such, the Agency dismissed the complaint as a whole.

Complainant appealed. On appeal, she indicated that the matter was subject to a settlement agreement which transferred her out of the harassing environment. However, Complainant argued that the effects of discrimination as still being felt for she is limited in her ability to apply for positions in her old workplace. Further, she argued that the settlement agreement occurred but she believed that information was withheld from her at that time.

ANALYSIS AND FINDINGS

As an initial matter, we note that the complaint alleged by Complainant involved a single claim of harassment. Her statements regarding the internal investigation were merely provided as support of her claim of harassment. Therefore, we find that Complainant alleged a single claim and not six claims as the Agency listed in its final decision.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.

Complainant indicated that, pursuant to mediation, it was agreed that Complainant would be transferred away from the harassing environment. As such, we find that there is no reasonable expectation that the alleged harassment will recur. Further, Complainant admitted that she did not request compensatory damages. Although Complainant argued that she cannot return to her prior office, however, she has not asserted that she continued to face any alleged harassment since she voluntarily transferred. As such, we find that Complainant's claim of harassment was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5) for mootness.

Since the Commission has dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(5), we need not address the Agency's other bases for dismissal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.

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

July 15. 2014

__________________

Date

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0120141125

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141125