0120101982
08-26-2010
Judy K. Thomason, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Judy K. Thomason,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101982
Agency No. ARFTCAMP09SEP05113
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated March 17, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (Caucasian) and in reprisal for prior protected EEO activity when:
1. On September 7, 2009, Complainant discovered that Person A, who is an employee of the Civilian Personnel Advisory Center (CPAC), characterized Complainant's EEO complaint as a "personal war."
2. In the distant past while Complainant was still employed at CPAC, Person B, the director of CPAC, once allegedly commented in regard to an argumentative workplace issue that "you need to learn to take it to the street."1
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined Complainant failed to show she suffered a harm or loss to a term, condition, or privilege of employment. Additionally, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds that it was moot. Specifically, the Agency stated that Complainant is now an employee of the Blanchfield Army Community Hospital and is no longer an employee of CPAC, no longer working under the supervision of Person B, and is no longer working in the same environment as Person B and Person A. The Agency stated that the Blanchfield Army Community Hospital is organizationally separate and geographically remote to CPAC. With regard to Complainant's request for "appropriate monetary compensation," the Agency found Complainant did not articulate a causal nexus between her request for monetary compensation and actual compensatory damages. Thus, the Agency determined Complainant's complaint was moot. Finally, the Agency dismissed issue (2) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that the statement allegedly made by Person B occurred while Complainant was working at CPAC, which was several years ago. The Agency stated Complainant did not initiate EEO Counselor contact within 45 days of when the statement was made.
On appeal, Complainant notes that the Agency failed to apply the Title VII retaliation standard to determine whether a reasonable employee would have found the employer's action materially adverse, i.e., whether the challenged action could dissuade a reasonable employee from protected conduct. Complainant argues that the actions at issue in this complaint would be considered by a reasonable person to have a "chilling effect" on any current or future EEO activity. Complainant also claims that Person B's unchecked, abusive treatment of Complainant forced her to leave her career field. Additionally, Complainant claims that Person B has also interfered with her current Human Resources duties for the Medical Command. Complainant also states that Person B provided unfavorable job references for her.
ANAYLYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find the Agency properly dismissed Complainant's complaint for failure to state a claim. The statement at issue in claim (1) consisted of one statement by Person A referring to Complainant made during the course of an investigation of an EEO complaint filed by Complainant's co-worker. To find that such a statement states a claim would have a chilling effect on witness statements in the EEO process. See Blinco v. Dep't of the Treasury, EEOC Request No. 05940194 (May 25, 1994), Calloway v. Dep't of the Army, EEOC Request No. 01943406 (July 18, 1994). Complainant states that Person A did not work at CPAC while she worked there. Complainant's Formal Complaint. We find the alleged incident does not concern a term, condition, or privilege of complainant's employment. Even applying the Commission's more liberal view of retaliation claims, we find that the statement at issue made during an investigation of an EEO complaint filed by a co-worker was not reasonably likely to deter Complainant or others from pursuing the complaint process.
The record reveals that the statement at issue in claim (2) was made by Person B while Complainant was working at CPAC. We find the statement allegedly made in issue (2) was an isolated incident which was not sufficiently severe or pervasive to constitute a hostile work environment. Moreover, we find Complainant failed to allege a harm or loss to a term, condition, or privilege for which there is a remedy. Similarly, we find the statement alleged was not reasonably likely to deter Complainant or others from pursuing the complaint process.
We note that this decision is limited to the issues contained in claims (1) and (2). While Complainant raises additional allegations concerning Person B forcing her out of her prior position, Person B giving her unfavorable job references, and Person B interfering with the duties on her current job, we find these issues are beyond the scope of this appeal.
CONCLUSISON
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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. 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 (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 26, 2010
__________________
Date
1 Complainant states she stopped working at CPAC on April 7, 2009.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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