Renita L. Fish, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 30, 2007
0120064284 (E.E.O.C. May. 30, 2007)

0120064284

05-30-2007

Renita L. Fish, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


Renita L. Fish,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01200642841

Agency No. IHS03806

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 14, 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. In her

complaint, complainant claimed that she was subjected to discrimination

on the bases of color (dark skin) and reprisal for prior protected EEO

activity under Title VII of the Civil Rights Act of 1964 when:

1. on June 29, 2005, complainant's supervisor (S1) told her "you're the

HNIC", and

2. on October 13, 2005, S1 sent an e-mail to complainant requesting an

explanation of why she missed a meeting, and

3. on October 17, 2005, S1 failed to alert complainant of a schedule

change, and

4. on October 21, 2005, S1 failed to inform other staff of complainant's

detail to another position.

Claim 1

The final agency decision (FAD) dismissed claim 1 for failure to timely

initiate EEO counseling. The FAD reasoned that complainant suspected

discrimination when she was "offended" by the alleged remark made by S1

on June 29, 2005, but did not initiate contact with an EEO counselor until

November 7, 2005, beyond the 45 day time limit to seek EEO counseling.

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). The time limit to seek EEO counseling shall be extended

when a complainant shows he or she did not know and reasonably should not

have known that the discriminatory action or personnel action occurred.

29 C.F.R. � 1614.105(a)(2). The Commission has adopted a "reasonable

suspicion" standard (as opposed to a "supportive facts" standard) to

determine when the forty-five (45) day limitation period is triggered.

See Howard v. Department of the Navy, EEOC Request No. 05970852

(February 11, 1999). Thus, the time limitation is not triggered until

a complainant reasonably suspects discrimination, but before all the

facts that support a charge of discrimination have become apparent.

This time limit shall also be extended for reasons considered sufficient

by the agency or Commission. 29 C.F.R. � 1614.105(a)(2).

Complainant claims she did not seek EEO counseling because she feared

reprisal. Although complainant indicates that she feared reprisal if she

pursued an EEO complaint, the Commission has repeatedly held that the mere

fear of reprisal is an insufficient justification for extending the time

limitation for contacting an EEO counselor. See Duncan v. Department

of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik

v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).

The record shows that complainant reasonably suspected discrimination

when S1 made the comment on June 29, 2005. While Commission regulations

governing computation of time limits allow for waiver and/or equitable

tolling under 29 C.F.R. � 1614.604(c), complainant has failed to set

forth any evidence or argument to justify tolling the time limits in

this matter. Accordingly, we affirm the dismissal of claim 1 because

complainant failed to timely seek EEO counseling.

Claims 2-4

The FAD dismissed these claims, which were all based on reprisal, on the

grounds that they failed to state a claim because complainant was not an

"aggrieved employee" under EEOC regulations. We note, however, that 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. EEOC Compliance Manual, Section

8: Retaliation (May 20, 1998); Burlington Northern and Santa Fe Railway

Co. v. White, 548 U.S.____, 126 S.Ct. 2405 (2006) (finding that the

anti-retaliation provision protects individuals from a retaliatory action

that a reasonable person would have found "materially adverse," which

in the retaliation context means that the action might have deterred a

reasonable person from opposing discrimination or participating in the

EEOC charge process); see also Lindsey v. United States Postal Serv., EEOC

Request No. 05980410 (Nov. 4, 1999). 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. Notwithstanding the above, we

agree with the agency's ultimate determination that complainant failed

to state a claim with regard to the above claims. In this regard, we

do not find that these matters would have deterred a reasonable person

from opposing discrimination or participating in the EEO process. To the

extent that complainant is alleging that: the e-mail from S1 requesting

an explanation for her absence from a meeting, the lack of notice from S1

of a schedule change, and the failure of S1 to notify other staff of her

detail to another position constituted harassment, the Commission notes

that unless the conduct is severe, a single incident or group of isolated

incidents will not be regarded as a claim of discriminatory harassment.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find that

complainant has not shown the three events recited in her complaint

were of sufficient severity or frequency to alter the conditions of

her employment. Accordingly, the agency properly dismissed Claims 2-4

for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

The FAD is affirmed.

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

___5/30/07________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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0120064284

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120064284