0120151178
02-10-2017
Keri C.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Keri C.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120151178
Agency No. FS201400579
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated January 29, 2015, 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 Resource Specialist at an unnamed Agency facility in Butte, Montana. On August 21, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In October 2013, a male co-worker worked during the Federal government shutdown without authorization;
2. On November 5, 2014, Complainant learned that a male co-worker who was not in pay status and whose whereabouts were unknown to management, was not charged with being Absent Without Official Leave (AWOL);
3. On unspecified dates, a male co-worker missed deadlines and performed his work poorly;
4. On an unspecified date, management removed "preparation of Brush Disposal Plans" from a male co-worker's job duties;
5. On an unspecified date, Complainant discovered that in Fiscal Years 2011 and 2012, a male co-worker worked excessive overtime;
6. On an unspecified date, Complainant discovered that a male co-worker had 85 hours of unused compensatory time; and
7. On an unspecified date, a male co-worker was not disciplined after failing to attend a training session.
The Agency dismissed the claims for failure to state a claim.
ANALYSIS AND FINDINGS
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 complaints alleging retaliation, 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 the FAD correctly found that Complainant failed to state a claim of discrimination based on sex because she does not allege that she suffered a present harm or loss. Nor does Complainant state a claim of reprisal because she does not allege she was subjected to adverse treatment. The FAD noted that, to the extent Complainant is alleging that she incurred a harm or loss and/or that she was subjected to adverse treatment, such claims have already been addressed and should therefore be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). For example with regard to claims 1 and 3, Complainant also mentioned that she was suspended, with regard to claim 2, Complainant mentioned she was charged with being AWOL, and with regards to claims 5 & 6, Complainant maintains that she was told that because of reasons of cost, she would not be promoted. The record shows, however, that Complainant raised her suspension in a prior complaint under Agency No. FS-2013-00167, and her AWOL charge in a prior complaint under Agency No. FS-2012-00315. The Agency consolidated both complaints and issued a FAD addressing these claims in a Final Order dated December 15, 2015, which Complainant appealed to this Commission. The matters have been docketed under Appeal No. 0120161168 which is currently pending. Furthermore, Complainant raised her non-promotion in a prior complaint under Agency No. FS-2010-00266 and the Agency issued a Final Order dated January 4, 2016, which Complainant appealed to this Commission and which is currently pending under Appeal No. 0120161239. She may not, therefore, raise these issues again in the instant complaint. See � 1614.107(a)(1).
CONCLUSION
The FAD is AFFIRMED.
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 (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 (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
February 10, 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.
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