Complainant,v.Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Jan 30, 2013

0120113687 (E.E.O.C. Jan. 30, 2013)

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

,
Complainant,

v.

Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120113687

Agency No. DFA-S00065-2011

DECISION

Complainant filed an appeal with this Commission from the Agency’s decision dated May 17,
2011, 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. Upon
review, the Commission finds that Complainant’s complaint was properly dismissed pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was formerly employed as a
Secretary in the Agency’s Office of General Counsel in Indianapolis, Indiana. On May 13,
2011, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the basis of reprisal for prior protected EEO activity when on March 28,
2011, an edible fruit arrangement, purchased by Complainant and delivered to a former co-
worker, was mishandled by the office manager.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. Specifically, the Agency found that Complainant failed to show how
the actions alleged rendered her aggrieved. On appeal, Complainant reiterates her contention
that the Agency’s actions were taken in reprisal for her prior protected EEO activity.

ANALYSIS AND FINDINGS

The Commission finds that the complaint fails to state a claim under the EEOC regulations
because Complainant failed to show that she suffered harm or loss with respect to a term,
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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). In so finding, we note that the
Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under
Commission policy, claimed retaliatory actions which can be challenged are not restricted to
those which affect a term or 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: see also Carroll,
supra. We find, however, that the actions alleged in the instant complaint are not reasonably
likely to deter employees from engaging in EEO activity. Therefore, the Commission finds that
the Agency properly dismissed Complainant’s reprisal claim.

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).
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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

January 30, 2013
Date