0120170316
03-27-2017
Jordon S,1 Complainant, v. Thomas E. Price, MD., Secretary, Department of Health and Human Services (Indian Health Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jordon S,1
Complainant,
v.
Thomas E. Price, MD.,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120170316
Agency No. HHSIHS03782016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated September 15, 2016, dismissing her complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician at the Agency's Northern Navajo Medical Center facility in Shiprock, New Mexico.
On August 12, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (American Indian - Navajo), religion (non-denominational church), disability, age (51), and reprisal for prior protected EEO activity when:
1. On June 8, 2016, management recommended Complainant be reassigned to another department.
2. On March 21, 2016 and March 22, 2016, Complainant assisted the Scrub Technician as requested, but did not have time to call management to explain. Complainant informed management the next day and was asked by management, "Who told you to come in?" and Complainant replied, "I had house approval assuming that she would give [a supervisor] the report."
3. On March 2, 2016, Complainant went to a coworker's office for a work-related issue and mentioned she was interested in a training that is offered to all Northern Navajo Medical Center staff. The coworker told Complainant that she did not qualify due to her health issues from chemical exposure and she did not need the training for competency unless she does not know what she is doing. Complainant stopped asking questions and resumed to her work duties.
4. On November 2, 2015, Complainant was exposed to chemicals when she attended a required In-Service Training for the proper mask to wear for Cidex Chemical handling. After In-Service Training, according to Complainant's doctor's statement, she is to avoid working with the chemicals, but was reassigned back into the decontamination area.
The Agency dismissed claims 1, 2, and 3 for failure to state a claim, and claim 4 for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claims alleging reprisal, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
Following a review of the record we find that Complainant fails to state a claim of disparate treatment based on race, religion, disability, or age with regard to claims 1, 2, and 3. We find that Complainant has not alleged she incurred any tangible harm or loss when: management recommended that she be transferred, but did not actually transfer her; she was challenged about coming in to work; and a coworker told her she did not qualify for training. We further find that Complainant fails to state a claim of reprisal with regard to claims 2 and 3 as we find that being challenged about coming on to work and being told by a coworker that one does not qualify for training are not the types of actions that are likely to deter Complainant or others from engaging in protected EEO activity.
Contrary to the FAD, however, we find that Complainant has stated a valid claim of reprisal when management recommended that she be transferred to another department as such an action by management is the type of action likely to deter Complainant or others from engaging in protected EEO activity if such a motivation could be proven.
Untimely EEO Counselor Contact
With regard to claim 4, the Agency dismissed the claim for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record shows that the incident occurred on November 2, 2105 but Complainant did not contact a Counselor until June 14, 2016, which is beyond the 45-day limit.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant stated a valid claim of reprisal when management recommended that she be transferred. With regard to the remaining claims we find that Complainant failed to state a claim and/or contacted an EEO Counselor after the relevant date. We therefore REVERSE the FAD in part and AFFIRM in part, and REMAND the matter for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (management recommended her transfer to another department in retaliation for her prior EEO activity) 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 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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
March 27, 2017
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170316
6 0120170316