Emma B.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 28, 2016
0120161912 (E.E.O.C. Jul. 28, 2016)

0120161912

07-28-2016

Emma B.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Emma B.,1

Complainant,

v.

Anthony Foxx,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120161912

Agency No. 201626768OST02

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated April 29, 2016, 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 Space Management at the Agency's facility in Washington, DC.

On April 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal when: (1) she was denied telework since September 2015; (2) her work schedule has been scrutinized; (3) some of her leave requests have been denied; (4) she was told that only leave amendments since April 2015 would be retroactively approved and that her LWOP requests from August 2013-March 2015 would not be amended; (5) as of March 2016, her office was eliminated in order to create an M-90 space; (6) her managers requested that she submit her FMLA forms to them for signature even though the forms did not require supervisory approval; and (7) when she was unable to come to the office in January and February 2016 due to inclement weather and school closures, management charged her sick leave under FMLA instead of coding the time off as LWOP, per her request.

On April 29, 2016, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant did not show that she had engaged in prior protected activity to support her claim of unlawful retaliation. The instant appeal followed.

ANALYSIS AND FINDINGS

Upon review, the Commission finds that the Agency's reason for dismissing the complaint addresses the merits of the claim without a proper investigation as required by the regulations. Whether or not Complainant can produce adequate evidence of prior protected EEO activity to support her claim of unlawful retaliation goes to the merits of Complainant's complaint, rather than whether or not she has stated a viable claim under Title VII and the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Complainant has alleged an injury or harm to a term, 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).

Moreover, we note that, on appeal, Complainant states that the harassment and other retaliatory actions were also taken against her "because [she] is an African American woman. [She is] the only African American on the space management team." Upon remand, the Agency should amend the complaint include claims of race and sex discrimination. The Commission has held that a complainant may allege discrimination on all applicable bases, including sex, race, national origin, color, religion, age, disability, genetic information and reprisal, and may amend his or her complaint at any time, including at the hearing, to add or delete bases without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. U.S. Postal Service, EEOC Request No. 05940563 (Jan. 19, 1995).

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 (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 (M0416)

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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 28, 2016

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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