0120132051
08-28-2013
Judith M. Maurer, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Judith M. Maurer,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132051
Agency No. 13-00038-00758U
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 10, 2013, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as a Financial Management Analyst at the Agency's Center for Excellence in Disaster Management and Humanitarian Assistance in Tripler AMC, Hawaii.
On February 28, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex and in reprisal for prior EEO activity when:
1. on various occasions, with the most recent incident occurring on December 3, 2012, [named Colonel] made threatening and/or bullying comments to her, i.e., "you have seen my good side and you do not want to see the other side;" he is planning to meet with the J8, Headquarters U.S. Pacific Command (PACOM), Judge Advocate General JAG), for assistance in justifying a poor performance rating and a letter of reprimand issued to her; she is a weak leader; he is taking adverse action against her due to the results of an audit conducted by the Navy Audit Service (NAS); and she should expect to receive an unacceptable performance rating for 2012;
2. on December 10, 2012, she observed the Colonel become enraged with a named employee;
3. on December 11, 2012, the Colonel issued Letters of Caution to two named employees despite Complainant's objection/recommendation; and
4. on December 13, 2012, there was an incident pertaining to the acceptance of information technology (IT) equipment and [Senior Program Advisor] directed her staff to accept IT equipment that was not within Navy policy, and bullied her.
The Agency dismissed 1 and 3 - 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that she was not aggrieved. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment. With respect to claim 2, the Agency determined that the Commission has long held that the person who files an EEO complaint must be the person who is actually aggrieved. The Agency further found that Complainant was not aggrieved when she observed the Colonel becoming enraged with an employee.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency improperly dismissed the instant formal complaint 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 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).
A review of the instant complaint reflects a series of incidents that includes Complainant's allegations that she was being harassed when the Colonel routinely bullied her to try to take disciplinary actions against her employees. For instance, Complainant stated that the Colonel wanted her to take disciplinary actions against her employees for errors in an audit but her employees were not responsible for the errors. In her formal complaint, Complainant stated that the Colonel "is trying to 'bully' the employees in my section because of prior EEO complaints by myself and others in my section."
We further note that Complainant, on appeal, states that in regard to claim 2, the Colonel became enraged with one of her employees that used to work for her and the Colonel "became enraged with [employee]; [Colonel] yelled and threatened [employee]. [Employee] was preparing to transfer out of the Command and provided to [Complainant] all of the necessary information and documents required for the turn-over. [Colonel] asked [Complainant] to summons [employee] into his office and, in the presence [of Complainant] and [employee], berated and belittled [employee]."
Furthermore, Complainant states that the Colonel "intentionally and repeatedly engaged in behavior to demean [Complainant] and/or to create an intimidating, oppressive atmosphere that drained [Complainant's] confidence and authority with the employees that worked for her...[ Senior Program Advisor] and [Colonel] both harassed and bullied [Complainant], when they yelled at and/or belittled the employees under the supervision of [Complainant]. They did not respect [Complainant] as the supervisor of the employee. [Colonel] threatened [Complainant] on a regular basis, and caused anxiety and stress for [Complainant]. There was disparate treatment of [Complainant] as there were two other similarly situated supervisors or direct reports to [Colonel], [Senior Program Advisor] and [Agency official] and they were not threatened and bullied."
As a remedy, Complainant requested a letter of apology from the Colonel and Senior Program Advisor; appropriate corrective actions for all responsible management officials involved in the bullying/reprisal actions; a corrected performance appraisal for the period of October 2011 to September 2012; attorney's fees; and posting on the bulletin board that the Agency "will not tolerate or participate in bullying, reprisal actions in the workplace. Equal opportunity for all employees." By alleging a pattern of harassment, Complainant has clearly stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (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 (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
August 28, 2013
__________________
Date
2
0120132051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132051