0120110372
02-28-2011
Gloria G. Danner, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Gloria G. Danner,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120110372
Agency No. 5W1C10003
DECISION
Complainant filed a timely appeal with this Commission from an Agency final decision, dated September 9, 2010, dismissing her formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
BACKGROUND
On June 16, 2010, Complainant contacted an EEO Counselor regarding claims of discrimination based on age, sex, disability and in reprisal for prior EEO activity. Informal efforts to resolve Complainant's concerns were unsuccessful. On August 4, 2010, Complainant filed the instant formal complaint.
The Agency framed the claims as follows1:
(1) On March 25, 2010, Complainant's supervisor annotated in her AF Form 971 that she was counseled on delinquent facility inventories and mid-term appraisals for her employees.
(2) On April 6, 2010, Complainant's supervisor gave her an interim performance appraisal that stated that she told employees to "pencil-whip" facility inventories, and negatively compared her to a subordinate employee.
(3) From March 25, 2010 to June 11, 2010, Complainant was subjected to a hostile work environment when the following actions occurred:
a. On March 25, 2010, Complainant's supervisor told her that she had told her employee to "pencil-whip" delinquent facility inventories.
b. On April 6, 2010, the Complainant's second-line supervisor told Complainant that "he would have no problem if someone stated to him no to pencil-whip."
c. From May 19, 2010 to June 4, 2010, Complainant's supervisor called her 9-11 times at home while she was on sick leave, to request her to file a travel voucher.
d. On June 11, 2010, Complainant's supervisor requested that Complainant provide a doctor's note concerning her sick leave from May 17, 2010 until June 7, 2010.
e. On June 11, 2010, Complainant's supervisor told Complainant that he was having an issue with her calling in sick during the week of June 7-11, 2010.
(4) On June 2-3, 2010,
a. The appraisal rating that the Complainant gave to her subordinate, Employee B, was upgraded by Complainant's supervisor.
b. Complainant's supervisor completed a CA-1, Federal Employee's notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, when he had not earlier completed one for the Complainant. 2
In its September 9, 2010 decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact and for failure to state a claim. Specifically, the Agency dismissed claims (1) and (2) on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant's June 16, 2010 contact was 83 and 71 days, respectively, after the alleged events.
The Agency dismissed Claims (3) and (4) for failure to state a claim. The Agency noted that claim (3) concerned matters which did not harm Complainant, but simply were "non-derogatory actions to another employee." Complainant's claim of a hostile work environment, claim (4), did not "rise to the level of severe and pervasive harassment.".
CONTENTIONS ON APPEAL
On appeal, Complainant argues that her claim was "made within the timeframe of completing my chain of command . . . ." Further, she contends that she had surgery on May 17, 2010 and was on medical leave through June 7, 2010. Finally, Complainant requests that the instant case be combined with a prior case (#5W1C09005) which was mediated in June 2008.
In response, the Agency reiterates the reasoning set forth in its decision. Regarding claims (1) and (2), the Agency stated that, even if they otherwise relate to a hostile work environment claim, they are discrete acts which should have been timely raised. As to claim (4), the Agency maintains that Complainant has not articulated how she was harmed by the events. Regarding claim (3), the Agency states the events were insufficiently severe and Complainant has not offered any proof that it was due to her protected bases.
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds that the Agency improperly fragmented the complaint. A fair reading of the record reflects that Complainant has presented one broad claims of harassment.
Untimely Counselor Contact
As noted above, claims (1) and (2) were dismissed on the grounds of untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.105, unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory.
The Commission finds that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
Here, the record reflects that some of the incidents comprising complainant's hostile work environment claim (claims (3) and (4)) occurred within the 45-day time period preceding complainant's EEO Counselor contact. Therefore, we find that the Agency's dismissal of claims (1) and (2) was improper.
Failure to state a claim
The Agency dismissed the remainder of the complaint, claims (3) and (4), for failure to state a claim. 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 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 (Apr, 21, 1994).
In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. 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 only 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. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Based on a review of the instant record, in the light most favorable to Complainant, we find that she has stated an actionable claim of harassment. The Agency improperly fragmented Complainant's hostile work environment claim by considering each event individually. By viewing all the claims together, the Commission finds that the complaint states a claim.
CONCLUSION
Accordingly, the agency's decision to dismiss complainant's complaint was improper, and is hereby REVERSED. The complaint is 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. 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 (Nov. 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
February 28, 2011
__________________
Date
1 We number the claims and do not repeat them for each basis, for the purpose of clarification.
2 In claim (4), Complainant did not raise the basis of sex.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110372