0120090967
05-15-2009
Donna J. Polinsky, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Donna J. Polinsky,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090967
Agency No. 200822142FAA01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 17, 2008, 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.
At the time of the events at issue, complainant was employed by the
agency as an Air Traffic Controller at the Dulles ATCT in Virginia.
In an EEO complaint filed on August 20, 2008, complainant alleged that
she was discriminated against on the bases of sex (female) and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when she was subjected to ongoing harassment. The agency
dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. The instant appeal followed.
Briefly, in her complaint, complainant stated that, earlier in the
year, she had filed a complaint of sexual harassment (Agency Complaint
No. 2008-21941-FAA). She said that as a result of this complaint, agency
management created a hostile work environment for her. She alleged that
sometimes the harassment was more "subtle," with management constantly
monitoring and criticizing her actions ["whatever I do is wrong, but it's
only wrong when I do it"]. Other times, she asserted the harassment was
more "overt and threatening." For example, she alleged that on June 11,
2008, a manager ignored her safety concerns about the effect of a tail
wind on a number of landing aircraft and told her to keep quiet and that
he was not interested in her input. Later, she learned that the manager
sent an e-mail to her supervisor saying she had disrupted the tower
by voicing safety concerns. Complainant also alleged that, on June 14,
2008, she was given oral instructions which she did not understand and
when she asked for clarification, she was told, "zip it. We don't want
your input." The manager later is alleged to have shaken his finger
in her face and shouted "you are unprofessional! I told you to shut
it! Get out of the tower!" Complainant was ordered to leave the tower.
Finally, complainant asserted that, on June 21, 2008, the same manager
shouted at her that she was unprofessional, that she could not do her
job and that she had a problem. The manager blocked her path out of
the cab. Complainant states she was later given an oral reprimand over
the incident.
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. 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,
.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). However, under the Commission's broad
view of reprisal, any adverse treatment that is based upon a retaliatory
motive and is reasonably likely to deter the charging party or others from
engaging in protected activity, states a claim. See Lindsey v. United
States Postal Service, EEOC Request No. 05980410 (November. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Moreover, where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
As an initial matter, given that the basis of the captioned complaint is
reprisal, we find that the agency failed to apply the appropriate legal
standard in analyzing whether the complaint set forth an actionable claim,
to include an actionable claim of harassment. As noted above, in order to
state a claim under the Commission's broad view of reprisal, a complainant
need not demonstrate that she is "aggrieved" under the Diaz standard as
stated by the agency, but only that she suffered adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Furthermore, in applying this standard, we find that complainant has
set forth an actionable claim of retaliatory harassment. Based on
complainant's statements, we find that she describes working conditions
where management constantly monitors and criticizes her actions, shouted
at her on a number of occasions and forced her to leave the control
tower, reported her to her supervisor, and issued her an oral reprimand.
Based on these statements, we find that, if proven true, complainant's
allegations are of actions sufficiently intimidating to create a hostile
work environment, and that she has set forth an actionable claim of
harassment based on retaliation.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim (hostile work
environment) 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 15, 2009
__________________
Date
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0120090967
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090967