0120123165
09-12-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120123165
Agency No. FBI-2012-00116
DECISION
Complainant filed a timely appeal with this Commission from the Agency's July 3, 2012 decision, 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 an Occupational Health Nurse at the Agency's Human Resources Division facility in Washington, DC.
On March 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and retaliatory harassment when, on December 5, 2011 and December 6, 2011, she was verbally harassed by a co-worker. In addition, Complainant asserts that she previously notified management of having been verbally attacked on two occasions in December of 2009 by the same employee. Complainant requested to amend her current complaint to allege an additional claim. Complainant alleges that the Agency criticized Complainant's communication skills and threatened her with disciplinary action after she complained to her supervisor about the co-worker's harassment.
Complainant maintains that the coworker was "hostile and aggressive" to her after Complainant did not sign up to bring jelly for an informal breakfast that the coworker was organizing. Complainant states that she is the "only person in her office with young kids at home, including a special needs child." The altercation that is the subject of this complaint occurred on December 5, 2011, and pertained to work files.
According to the EEO counselor's report, Complainant claims that on December 5, 2011, she was approached by the co-worker who insisted that Complainant retrieve certain patient records. After Complainant stated that she would look into the matter, the co-worker demanded that Complainant provide her with the files immediately. Complainant sent an email dated December 5, 2011, to her supervisor.
On the next day, as Complainant was exiting an elevator, the same co-worker asked Complainant what she was doing, because she had not received the files. Complainant maintains that the co-worker then "engaged in yet another verbal assault." The co-worker disparaged Complainant because Complainant had sent an email to Complainant's supervisor asking for his intervention for the problems between Complainant and the co-worker. The coworker told Complainant that she would "throw [Complainant] under the bus" and told her that she made a huge mistake in reporting her conduct to their supervisor and that Complainant "better not ever make [the coworker] look bad in front of [her] supervisor again or else!"
On Friday, December 9, 2011, Complainant's supervisor had a meeting with Complainant, at Complainant's request, with regard to the incidents. Complainant believed that this pattern of unprofessional behavior (exhibited by the co-worker) was unacceptable and "disregarded the core principles of the Bureau's standard of conduct." Complainant states that she repeatedly asked the co-worker to refrain from "her unprofessional behavior." The co-worker denied Complainant's allegations of any type of unprofessional behavior. Complainant maintains that "the Bureau is aware of this conduct and any remedial actions taken, if any, have been clearly ineffective in deterring her behavior." Complainant told her supervisor that she would be submitting a formal complaint because she felt that she was being harassed, threatened and bullied by the co-worker. Complainant maintains "the issue is the fact that there is a violent and unpredictable person in our unit who feels that she can yell at others, physically intimidate by her posturing, threaten and bully anyone, anytime she feels like it . . . and this is a problem that the FBI has refused to address."
The record includes a letter, dated December 14, 2011, which Complainant wrote with the stated purpose of filing a formal grievance with regard to the ongoing verbal harassment by her coworker. According to the Counselor's Report, Complainant met with EEO Counselor on December 16, 2011. Complainant claims that she initiated contact on December 15, 2011.
On January 10, 2012, during a meeting with management, Complainant's communications skills were described by her supervisor as "subpar." On the same day, she was issued a memorandum, accusing her of failing to respond to four emails sent by the co-worker.
Both employees were cautioned that failure to interact with professionalism and emotional equanimity will be treated as a disciplinary matter. Management also discouraged Complainant from pursuing her claims. In a written communication to Complainant, the Unit Chief, noted her recommendations. She advised Complainant: "You are aware of additional grievance mechanisms that you may use, but I am not supportive of further investigation or inquiry at this time."
Complainant further claims that it was only after reporting her coworker's hostile behavior and filing an informal EEO complaint that her performance was criticized. She asserts that "this is blatant retaliation." She said that after she reported her coworker, her supervisor became suddenly critical of her.
Complainant states that, on January 26, 2012, she met a second time with the EEO Counselor. Complainant asked why no action was being taken on her complaint and why none of her witnesses had been interviewed. The Counselor informed Complainant that "from her meeting with [Complainant's] superiors, both [the coworker] and Complainant will both be disciplined if this continues."
The Agency Decision
The Agency denied the request to amend the complaint to add the new allegations because the Agency states that Complainant made the contact 95 days after their occurrence. Therefore, the EEO contact was untimely.
The Agency next dismissed for failing to state a claim of discrimination or reprisal. The Agency found that the allegations fail to state a claim insofar as Complainant "has not demonstrated that [the actions] harmed a term, condition, or privilege of her employment."
Regarding the alleged reprisal, the Agency found that the allegations did not rise to the level of actions that would deter a reasonable person from either opposing discrimination or participating in the EEO process. Therefore, the Agency found that Complainant failed to state a claim of retaliatory harassment.
Next, the Agency found that the comments made to Complainant at the January 10, 2012 (in which Complainant's communications skills were described as subpar) had not been brought to the attention of the EEO Counselor and were not included in the March 19, 2012 complaint. Although the Agency stated that it would consider the new issues as an amendment, the Agency dismissed the entire complaint for untimely EEO contact and failing to state an actionable claim. This appeal followed.
ANALYSIS AND FINDINGS
We conclude that Complainant's initial EEO counselor contact on December 15, 2011 was timely with regard to the claims of harassment that occurred on December 5, 2011 and December 6, 2011. Inasmuch as we find these claims to be timely, this will render Complainant's related hostile work environment claims also timely raised. Further, Complainant subsequently contacted the EEO Counselor to raise retaliation after she was threatened with disciplinary action if she continued to pursue her EEO claims.
The Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action 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 Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995).
In this case, Complainant was cautioned not to talk with her supervisor about her concerns. She was told that the problems with the coworker were due to Complainant's sub-par communications skills and threatened with disciplinary action. We find that the complaint states a claim under the EEOC regulations because Complainant alleges that she was subjected to harassment, threats, criticism, and undue restrictions, after she brought claims of alleged discrimination to the attention of management.
While the record does not show that the Agency subjected Complainant to any personnel action, an agency has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in every aspect of agency personnel matters. 29 C.F.R. 1614.102. Walker v. Department of Agriculture, EEOC Appeal No. 0120080253 (September 25, 2008) (management's interference with complainant's EEO activity constituted retaliatory discrimination). Agencies must ensure that its managers promote and enforce a vigorous equal employment opportunity program. 29 C.F.R. 102(a)(5). Moreover, the Commission has held that the actions of a supervisor may be per se reprisal where he or she intimidates an employee and interferes with his or her EEO activity in any manner. See Binseel v. Department of the Army, EEOC Request No. 05970584 (October 8, 1998).
She sufficiently alleged that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was improperly dismissed.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND these claims for further processing pursuant to the following Order.
ORDER
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 tends 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
September 12, 2014
__________________
Date
2
01201-3165
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123165