0120065017
11-06-2007
Michele E. McMullen, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Michele E. McMullen,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200650171
Agency No. DON-FY05-69218-02291
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated July 31, 2006, 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., 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.
Complainant, a Security Officer/Facilities Manager, claimed that she was
subjected to discrimination and harassment based on her sex (female),
disability (degenerative disc disease, osteo arthritis and scoliosis),
age (born in 1951), and reprisal for prior protected EEO activity when:
1. in December 2003, her unit was given the additional duties of
complete control and responsibility for the Classified Material Vault,
all classified containers throughout the command, the SIPRNET facility,
and the classified conference room,2
2. despite the above and complainant's request for additional resources,
management has continually failed to provide additional staff, and
explicitly denied reassigning a staff member to her unit sometime after
September 20, 2005,3
3. on May 15, 2005, her supervisor surveyed by email supervisors and
managers asking them if they had any concerns about the accessibility
to classified materials,
4. complainant learned on September 19, 2005, that an investigation had
been initiated concerning her failure to submit to a random drug test
on September 13, 2005; assigning someone outside her chain of command
to conduct the investigation; and denying her request to meet with a
Captain regarding these matters,
5. on September 13, 2005, the Command's Resources Specialist Division
Director (Drug Free Workplace Program liaison) communicated sensitive
information about her to the Drug-Free Workplace Program Coordinator
and other employees that they did not have a need to know, and
6. on October 3, 2005, she was advised by her supervisor that he was
considering moving her division's Facility Manager function to the Safety
Division.4
The FAD dismissed claims 1 and 3 for failure to timely initiate contact
with an EEO counselor. The FAD dismissed claims 2, 4, 5, and 6 for
failure to state a claim. On appeal, complainant contends that she
did not learn about the event in claim 3 until September 8, 2005.
She also claims that all her claims are timely, raising argument akin
to continuing violation. Complainant contends that her claims state
a claim of harassment. In reply, the agency argues that the FAD was
properly decided. It also argues that claim 3 fails to state a claim.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). In dismissing claims 1 and 3, the FAD
reasoned that complainant initiated EEO contact on September 28, 2005,5
beyond the 45 calendar day time limit.
A hostile work environment claim is comprised of a series of separate
acts that collectively constitute one unlawful employment practice.
National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at 115.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even if some
component acts of hostile work environment fall outside the statutory
time period so long as an act contributing to the claim falls within
the filing period. Id. at 117.
We affirm the FAD's dismissal of claim 1 for failure to timely initiate
contact with an EEO counselor. Complainant initiated EEO contact nearly
two years after this matter occurred, long after the 45 day time limit to
do so. Further, she does not allege facts that tie her claims together
into the same unlawful practice. For example, she does not contend
that adverse actions have occurred to her, such as a low performance
appraisal or discipline, as a result of her unit's workload, nor raise
interrelated incidents of intimidation, ridicule or insult sufficient
to tie things together.
Based on complainant's statement on appeal, we find that she timely
raised claim 3. Complainant affirms she did not learn of this matter
until September 8, 2005, making claim 3 timely. However, we will address
whether claim 3 states 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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
We dismiss the remainder of the complaint for failure to state a claim.
Regarding claim 2, complainant has not shown any present harm or loss to
her as a result of the agency declining to assign an additional resource
(a secretarial employee) to her unit. Regarding claim 3, complainant
does not contend that any action was taken as a result of this survey.
We find that complainant was not harmed by this matter.
Similarly, regarding claim 4, complainant does not claim any action was
taken against her as a result of the investigation. Also, the Commission
has held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998) (claim concerning
a criminal investigation division (CID) investigation viewed as
a collateral attack and failed to state a claim); Lingo v. United
States Postal Service, EEOC Appeal No. 0120064361 (December 14, 2006)
(discrimination and reprisal claim regarding interrogation by postal
inspectors regarding the circumstances of a claimed on-the-job injury
failed to state a claim). We find claim 4 is an impermissible collateral
attack on a management investigation, and hence fails to state a claim.
Regarding 5, complainant did not identify in her complaint the sensitive
information released, but made the allegation in the context of the
agency's Drug Free Workplace Program liaison talking to others on the day
she missed her random drug test. The liaison acknowledged "regrettably"
telling an employee in the Comptroller's Office that complainant failed
to show up for a drug test. While this was not appropriate, we find
it does not rise to the level of harassment, and hence does not state
a claim. We add that this does not violate Rehabilitation Act medical
information confidentiality requirements. Tests for current illegal
use of drugs are not a medical examination. EEOC Enforcement Guidance
on Disability Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (July 26, 2000) (available
at www.eeoc.gov).
Regarding claim 6, complainant merely alleged that the matter was
considered, not that it occurred. Accordingly, this matter fails to
state a claim. Complainant was not harmed.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. Applying
this standard, we find that the events in claims 2 through 6 would not
likely deter protected activity.
Accordingly, complainant's complaint is dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
November 6, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 The FAD characterized this claim as the agency breaching its October
21, 2003, settlement agreement with complainant. Complainant actually
alleged the additional responsibilities were assigned two months after
the settlement agreement was made, not that this breached the settlement
agreement.
3 According complainant's supervisor, this staff member was a secretary.
4 The FAD defined this claim as complainant being informed that the
function was being reassigned out of complainant's unit. Complainant
claimed she was told this was being considered.
5 In an apparent typographical error, the FAD wrote September 29, 2005.
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0120065017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120065017