0120150845
05-01-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120150845
Agency No. ARCEHECSA14AUG03295
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 5, 2014, dismissing a formal 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
During the period at issue, Complainant worked at an Agency facility in Washington, D.C.
On October 11, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination in reprisal for prior protected activity when:
1. on September 26, 2014, Complainant's supervisor, the Supervisory Civil Engineer, informed Complainant that her physician must fill out form WH-380-E for her to request/invoke Family Medical Leave Act (FMLA) on the day prior to taking medical leave; however, the supervisor had previously stated on August 29, 2014, that all he needed from Complainant was a leave slip OPM SF71; and,
2. on August 28, 2014, Complainant's supervisor, held a telephone conversation with Complainant that resulted in a counseling memorandum regarding her concerns over a coworker, who Complainant perceived was creating a hostile work environment, and she therefore felt uncomfortable attending a TDY meeting with that coworker in San Antonio, Texas.
On December 5, 2014, the Agency issued the instant final decision, dismissing both matters for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1) . Regarding claim 1, the Agency determined that it addressed an FMLA issue and that it was a collateral attack on the FMLA process governed by the United States Department of Labor. The Agency also found that the memorandum referenced in claim 2 was not disciplinary in nature, and was not contained in Complainant's official personnel file.
The instant appeal followed. On appeal, regarding claim 1, Complainant contends that she was not concerned with the substance of the information sought by her supervisor in regard to her FMLA leave request. Complainant instead contends that she was concerned with the manner in which the supervisor requested the information. Specifically, Complainant felt that her supervisor had ample time, approximately one month prior to the start of her FMLA leave, to request the information. Complainant asserts that her supervisor purposely sought the information four hours before Complainant was prepared to leave. Complainant contends that the timing of the request was a demonstration of the supervisor's continued retaliation against her for filing an EEO complaint. Complainant contends that her supervisor increased surveillance of her work, and limited her duties as a result of her EEO activity.
Regarding claim 2, Complainant argues that the Agency action was in essence an "unwarranted and unsupported reprimand" and that it was one of many incidents of retaliation after Complainant informed her supervisor that she was initiating the EEO complaint process.
In response, the Agency reiterates arguments that its dismissal was appropriate. The Agency contends that it was proper to dismiss claim 1 as Complainant was launching a collateral attack on the FMLA process and improperly used the EEO process. The Agency contends that Complainant's appeal brief also focuses on the speculation of a possible future disciplinary action (in claim 2), and is thus not sufficient to support a claim of discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(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).
Regarding claim 1, we acknowledge that the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
However, we find in claim 1, Complainant is not collaterally attacking a decision rendered in another adjudicatory process. Rather, a fair reading of claim 1 as well as the EEO counseling report reveals that that Complainant was actually alleging that she was subjected to retaliation by her supervisor after Complainant's pursuit of the EEO complaint process. Complainant alleged that her supervisor's request for more information regarding her FMLA leave request "was given to [her] last minute and was done deliberately to case [her] a great deal of stress thus continuing his harassment of [her]." Complainant makes a similar argument regarding claim 2; that the memorandum was issued in response to her pursuit of the EEO complaint process.
Moreover, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term of condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15.
Given the context in which Complainant has addressed the purported Agency actions of retaliation for prior pursuit of the EEO complaint process, we determine that Complainant has addressed a personal loss or harm to a term, condition or privilege of employment for which there is a remedy regarding both claim 1, discussed in detail above, as well as claim 2. We determine further that the subject claim has been articulated with sufficient clarity, and that the allegations are sufficient to state viable claims.
CONCLUSION
The Agency's final decision dismissing the formal complaint is REVERSED and the matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. � 1614.108 et seq. 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
May 1, 2015
__________________
Date
2
0120150845
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150845