0120151034
05-21-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120151034
Agency No. ARFTCAMP14AUG03756
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 9, 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
During the period at issue, Complainant worked as an Expanded Function Dental Assistant at Fort Campbell, Kentucky. On October 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity.
In its final decision dated December 9, 2014, the Agency determined that Complainant's complaint was comprised of the following claims:
1. On August 15, 2014, [Complainant] received an email from a [named Agency official, A1] stating that [Complainant] contacted Adkins Dental Clinic inquiring about him making derogatory statements in reference to an EEO complaint of an employee, who [she is] currently representing.
2. On August 15, 2014, [A1] called [Complainant] into his office along with [another named Agency official] being present and cited the table of penalty for making statements against a supervisor, while the door to his office was left open where others could hear the conversation?
3. On August 18, 2014, [A1] changed her schedule, which had been approved since August 1, 2014, for [Complainant] to conduct [her] required HIPPA training and allegedly stated "I don't think you need two hours to complete the training, you only need one hour."
The Agency dismissed Complainant's complaint for failure to state a claim.
The instant appeal followed. On appeal, Complainant asserts that the Commission should reverse the Agency's dismissal of her complaint because A1 made false allegations against her, threatened her with discipline, and changed her training schedule. On appeal, Complainant for the first time raises a new claim that she is being denied opportunities to perform her specialized skills (fillings), while her counterparts are provided opportunities to perform such functions.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.
ANALYSIS AND FINDINGS
We find that the Agency improperly dismissed Complainant's complaint for failure to state a claim. Complainant has alleged that she was subjected to unlawful retaliation for engaging in prior protected activity. Specifically, a review of the record reflects that Complainant is alleging that A1 made false allegations against her, threatened her with discipline via email and verbally, and changed her training schedule based on her prior protected activity. We find that that the alleged incidents are reasonably likely to deter Complainant or others from engaging in protected activity. Thus, Complainant has set forth an actionable claim. Regarding the Agency's assertion on appeal that A1's email was to assure recipients that another employee's EEO complaint was being taken seriously, we find that this assertion goes to the merits of the complaint and is not relevant to whether Complainant has set forth an actionable claim.
On appeal, Complainant for the first time raises additional claims, such as being denied opportunities to perform her specialized skills. If Complainant wishes to request that the Agency amend the instant remanded complaint to include these new claims, she should put the request in writing to the Agency's (Army) EEO Director. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 MD-110, Chap. 5 � III(B) (1999).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with 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
May 21, 2015
__________________
Date
2
0120151034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151034