0120161971
02-23-2017
Maya F.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maya F.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120161971
Agency No. ARSTEWART15APR01238
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 2, 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 IT Specialist at the Agency's Community Hospital facility in Fort Stewart, Georgia. On May 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected activity under Title VII when:
1. From the time of Complainant's reassignment in November 2014 to the present, Complainant alleged that she has been discriminated against based on her sex (female) when the major sabotaged her career because she worked in a male dominated field by 1) reassigning Complainant to a healthcare systems position for which she is not qualified; 2) denying her necessary training to be successful in administering the healthcare system required by her position; and 3) refusing to assign Complainant back to a technical networking position for which she is qualified.
2. After filing a grievance in December 2014, Complainant alleged that management including the Manager took retaliatory action against her by repeatedly badgering her with Memoranda for Record accusing Complainant of not performing work and engaging in behavior that is disruptive to her coworkers, as well as on April 6, 2015, issued her a formal written reprimand for unwillingness to perform duties.
On May 28, 2015, the Agency issued a final decision dismissing claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that claim (2) did not constitute an unlawful employment practice under EEO Statutes. The Agency then accepted claim (1) for investigation. Subsequently, on July 2, 2015, the Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same claim in a union grievance. The Agency noted that she had filed a grievance on December 4, 2014. Further, the Agency indicated that the Collective Bargaining Agreement (CBA) allows for employees to file a grievance or an EEO complaint, but not both. The Agency noted that Complainant had chosen to file her grievance in which she could allege discrimination prior to filing the instant EEO compliant. As such, the Agency dismissed the complaint as a whole. This appeal followed.
ANALYSIS AND FINDINGS
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
In the instant case, we find that Complainant did in fact file a grievance regarding the allegations in her complaint, in a grievance process that permits claims of discrimination to be raised. The record includes a copy of the grievance, dated December 4, 2015, pertaining to Complainant's reassignment to the Clinical Health Care Systems in November 2014, her need to undergo extensive training for a vastly different skillset needed for the new position; and her wish to return to an assignment for which she was qualified. The Agency also provided a copy of the CBA indicating that Complainant may raise claims of discrimination in the grievance process. As such, we find that the Agency's dismissal of claim (1) was appropriate.
Claim (2)
The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1). 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 (Apr. 21, 1994).
Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. We also note that the Commission has held that participation in the grievance process may be a protected activity, if claims of discrimination are raised therein. See Shively v. Dep't of the Army, EEOC Request No. 05960481 (Dec. 31, 1996).
Upon review of the complaint, we find that Complainant has alleged that, following her grievance in which she asserted that she was subjected to discrimination based on sex, management badgered and issued her memoranda of record. We find that these events are reasonably likely to deter the charging party or others from engaging in protected activity. As such, we find that the Agency's dismissal of claim (2) was not appropriate.
CONCLUSION
Upon review of the record, we AFFIRM the dismissal of claim (1) and REVERSE the dismissal of claim (2) and REMAND claim (2) for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims, namely claim (2), 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 was issued. 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 was issued, 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
February 23, 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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