Diane D. Valdovinos, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 17, 2007
0120065272 (E.E.O.C. Aug. 17, 2007)

0120065272

08-17-2007

Diane D. Valdovinos, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Diane D. Valdovinos,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01200652721

Agency No. TD 05-2032

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 15, 2006, 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. In her

complaint, complainant alleged that she was subjected to discrimination

on the basis of reprisal for prior protected EEO activity2 when:

1. The agency did not comply with a September 2, 2003, resolution

agreement and

2. Complainant was subjected to a hostile work environment.

The record indicated that in support of her claim of hostile work

environment, the following events occurred: she was charged with absence

without leave (AWOL) for approved leave under the Family Medical Leave

Act (FMLA); her personal business and chronic health condition have

been shared and discussed with others who do not need to know; false

statements about her have been made; her character has been tarnished;

her appraisal was lowered; she has been stalked; she was given unwarranted

counseling with the most recent occurring on August 3, 2006 and May 10,

2006; denied overtime as recently as May 2006; and had her time sheets

falsified also recently in May 2006.

The agency dismissed claim (1) for raising a matter that has been already

raised with the agency. The agency indicated that complainant alleged

a breach of the September 2, 2003, agreement. On July 20, 2006, the

agency issued its determination regarding complainant's claim of breach.

Therefore, the agency determined that complainant alleged a claim of

breach that has already been addressed by the agency. As to claim (2),

the agency noted that some of the events raised by complainant were

raised in a complaint that was resolved through the September 2, 2003,

agreement, in particular involving the lowered appraisal. Further, the

agency noted that complainant's claims regarding FMLA were raised in a

grievance procedure that allows for claims of discrimination. As to

the alleged libelous statements and profane language used by management

officials, the agency found that those incidents were not enough to

state a claim of harassment. As such, the agency dismissed claim (2)

pursuant to 29 C.F.R. � 1614.107(a)(1).

This appeal followed.

Claim (1)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

It has long been established that "identical" does not mean "similar."

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident, and parties.

See Jackson v. Department of the Air Force, EEOC Appeal No 01955890

(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April

24, 1997). The record indicates that complainant filed a claim of breach

regarding her appraisal for the year 2002 and her FMLA request from that

same time frame. The agency issued a final determination regarding her

claim of breach of the September 2, 2003, settlement agreement on July 20,

2006. The instant complaint alleges the same FMLA request and appraisal.

As such, we find that the agency's dismissal was appropriate.

Claim (2)

In claim (2), complainant alleged that she was subjected to retaliatory

harassment. As noted above, any events related to the 2002 appraisal and

the FMLA from the same time period were addressed either in the settlement

agreement or as part of the breach determination from July 20, 2006.

Therefore, those events have already been decided by the agency.

Complainant also asserted in her claim of harassment that she was placed

as AWOL. We note the record contains a copy of a grievance regarding

complainant's denial of FMLA leave as well as a copy of the collective

bargaining agreement showing that the grievance procedure permits claims

of discrimination to be raised. EEOC Regulation 29 C.F.R. � 1614.301(a)

states that when a person is employed by an agency subject to 5 U.S.C. �

7121(d) and is covered by a collective bargaining agreement that permits

claims of discrimination to be raised in a negotiated grievance procedure,

a person wishing to file a complaint or grievance on a matter of alleged

employment discrimination must elect to raise the matter under either part

1614 or the negotiated grievance procedure, but not both. An aggrieved

employee who files a grievance with an agency whose negotiated agreement

permits the acceptance of grievances which allege discrimination may

not thereafter file a complaint on the same matter under this part 1614

irrespective of whether the agency has informed the individual of the need

to elect or whether the grievance has raised an issue of discrimination.

Therefore, complainant's claim of being listed as AWOL is properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).

Based on the above dismissals, in support of complainant's claim of

hostile work environment, complainant asserted that the following events

occurred:

a) Her personal business and chronic health condition have been shared

and discussed with others who do not need to know

b) False statements about her have been made.

c) Her character has been tarnished.

d) Her appraisal was lowered.

e) She has been stalked.

f) She was given unwarranted counseling with the most recent occurring

on August 3, 2006 and May 10, 2006.

g) She was denied overtime as recently as May 2006.

h) Complainant had her time sheets falsified also in May 2006.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails

to state a claim. We note that complainant has alleged retaliatory

harassment. 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 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.

In determining whether a harassment complaint states a claim in cases

where a complainant had not alleged disparate treatment regarding a

specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment claims,

when considered together and assumed to be true, were sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999). Upon review of the record, we find that

complainant has alleged events, taken as a whole, are sufficiently severe

to state a claim of retaliatory harassment. As such, we find that the

agency's dismissal of claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1)

was inappropriate.

CONCLUSION

Accordingly, we AFFIRM the agency's dismissal of claim (1). However,

the Commission REVERSES the agency's dismissal of claim (2) and REMAND

claim (2) for further processing as ORDERED below.

ORDER (E0900)

The agency is ordered to process the remanded claim (2) 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

August 17, 2007

__________________

Date

1 Due to a new data system, the case has been re-designated with the

above referenced appeal number.

2 The record indicates that complainant filed alleged discrimination in

violation of Title VII.

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0120065272

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065272