Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120121173 (E.E.O.C. Mar. 14, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120121173

Agency No. DOS-F-128-11

DECISION

Upon review, we find that the Agency’s decision dated December 5, 2011, dismissing
Complainant’s complaint for failure to state a claim is proper pursuant to 29 C.F.R.
§1614.107(a)(1). For the following reasons, we AFFIRM the Agency’s decision.

BACKGROUND

In her complaint, dated September 23, 2011, Complainant, a Program Assistant, GS-8, alleged
discrimination in reprisal for prior EEO activity when: in August 2008, she was placed on
leave restriction; in January 2009, management took away some of her job duties; in April
2010, she was placed on a Performance Improvement Plan; in February 2011, she was placed
in a Leave Without Pay status; and in April 2011, her Top Secret security clearance was
revoked. The Agency stated that Complainant had not engaged in EEO activity nor had she
opposed a discriminatory practice. The Agency indicated that Complainant’s filing a grievance
with her union in May 2008, regarding her performance appraisal was not protected EEO
activity because she did not raise an allegation of discrimination therein. The Agency thus
dismissed the complaint for failure to state a claim.

ANALYSIS AND FINDINGS

In this case, Complainant claimed that during the relevant time period at issue, she was
subjected to unlawful retaliation by her supervisor because she previously filed a grievance
against the supervisor in May,2008, concerning her performance appraisal. Complainant
indicated that she also informed her upper level management about the supervisor’s constant
retaliatory unfair treatment toward her creating a hostile work environment. The Agency
stated that Complainant’s filing of a grievance was not protected EEO activity. After a review
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of the record, there is no evidence that Complainant raised any protected basis (covered by
EEO laws) in her grievance or to her upper management. Complainant indicated that her
grievance involved an unfair treatment from the supervisor. Upon review, we find that
Complainant did not engage in any protected opposition to discrimination.

CONCLUSION

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.
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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 14, 2013
Date