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