0120130101
03-20-2013
Delories King, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Delories King,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130101
Agency No. 12-40080-01727
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 30, 2012, 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 a General Engineer at the Agency's Public Works Department in Washington, D.C.
On June 5, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and color (Brown) when: Management imposed a Performance Improvement Plan (PIP) on her and she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. Complainant was given a less than satisfactory performance appraisal and placed on the PIP;
2. She was ordered to sign a blank appraisal form prior to receiving it.
3. She was not provided with a required self-assessment form.
4. She has been repeatedly alleged to have unexcused absences since July 2011.
5. Complainant has been repeatedly been questioned on the status of projects during and after meetings.
6. On May 14, 2012, the Supervisor cancelled Complainant's meeting for the following day and had it rescheduled for a day that Complainant was out on annual leave. Complainant noted that the Supervisor routinely changed scheduled meeting times with little or no notice.
7. On March 26, 2012, Complainant was ordered to provide a Beneficial Occupancy Letter to a customer for a building that is semi-operational. She was later ordered to rescind the correspondence.
8. Junior employees are required to attend progress meetings with Complainant and question her decisions.
9. She asserted that the Supervisor empowered other employees to act in a hostile and disrespectful manner. For example, Complainant indicated that on May 3, 2012, a subordinate employee called her a "bitch."
10. She also noted that Management is copied on emails to create an appearance that she is unable to perform her functions.
11. She indicated that Management released information regarding her performance appraisal to other employees which empowered them to act in a disrespectful manner. For example, on April 19, 2012, another employee apologized to Complainant for her "getting written up."
12. Complainant also learned that certain projects were reassigned because of her "inability to perform."
The Agency found that Complainant alleged two claims of discrimination, namely when she was issued the PIP and she was subjected to harassment. The Agency dismissed both claims pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that Complainant failed to show that she was harmed by the PIP noting that she was issued the written memorandum of counseling during a progress review. Further, the Agency noted that these were proposed actions. Further, the Agency found that Complainant failed to show that the alleged events were sufficient to state an actionable claim of harassment. The Agency also indicated that Complainant listed "retaliation" on her narrative provided with her formal complaint. However, the Agency dismissed this basis noting that Complainant has not previously filed an EEO complaint. As such, the Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(1). This appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, .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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In her complaint, Complainant alleged a series of events which allegedly occurred from June 2011 to May 2012. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency separated out the claim regarding the PIP from the rest of the alleged events. On appeal, Complainant clearly stated that the PIP and the actions by the Supervisor surrounding the PIP were provided in support of her claim that she was subjected to a hostile work environment. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint as two separate claims. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper.
The Agency also dismissed the basis of retaliation finding that Complainant has not previously engaged in protected activity. On appeal, Complainant asserted that she was being targeted by the Supervisor due to her "previous contact with the EEO office last year" in 2011 and when she challenged the termination of a female colleague. As such, Complainant claimed that she had engaged in a prior EEO matter and has opposed discrimination. Therefore, the Agency's dismissal of the claim of reprisal should be reversed. Upon review, we find that Complainant has asserted that she has engaged prior protected EEO activity. As such, the dismissal of the basis of reprisal is not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter 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
March 20, 2013
__________________
Date
2
0120130101
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130101