Sherry A. Mayo, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 11, 2012
0120113098 (E.E.O.C. Dec. 11, 2012)

0120113098

12-11-2012

Sherry A. Mayo, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Sherry A. Mayo,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120113098

Agency No. 116309300784

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated April 22, 2011, 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 Supervisory Training Technician at the Agency's Naval Air Technical Training Center (NATTC) in Pensacola, Florida.

On March 10, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the basis of sex (female) and reprisal for prior protected EEO activity under Title VII.

In her complaint, Complainant alleged that she had previously complained that her first-level supervisor continuously denied that she was tasked with the duties and responsibilities of running the Student Control Division. She asserts that her supervisor did not want to assign her management-level tasks, and so, when such a tasking was needed, he asked the Master Chief Avionics Technician (AVCM) to ask her to perform the task. She alleged that on January 14, 2011, the AVCM came into Student Control, approached her desk, pulled up a chair close to her, sat down, bent forward, and made the statement, "I'll bet you have been waiting to hear this your whole life" and then moved in closer and said in a lower voice, "I need you." She stated that he then asked her to attend a meeting as a "subject matter expert" from Student Control. According to the EEO Counselor's Report, dated March 16, 2011, the AVCM's conduct on January 14, 2011 was perceived by Complainant as an unwelcome, sexual advance. However, in her formal complaint, Complainant characterized this incident as her supervisor asking the AVCM to "schmooze" her "into accepting a tasking instead of [the supervisor] approaching [her] himself."

When Complainant complained about the AVCM's conduct, she asserted that in retaliation management engaged in a series of actions that created a hostile work environment for her. The examples she provided of these actions were:

* The AVCM undermined her authority as a manager by making a recommendation (which was later adopted by upper level management) that all correspondence [generated by Complainant] be handled electronically and any non-electronic requirements go through appropriate higher level supervisors.

* According to the Command Investigation Report (CIR), dated January 28, 2011, [written in response to Complainant's complaint about the conduct of the AVCM]CIR, the AVCM made unwarranted negative comments about the employees Complainant supervises in an effort to cast doubt on her abilities as a supervisor. ("Since my arrival, I have received numerous complaints regarding the student control employees' attitude, surpassed only by the galley workers, and I have made an intentional effort to have a good working relationship with them."

* The Command Investigation Report recommended sexual harassment training for Complainant as "it is evident she does not know the definition of sexual harassment and did not take care of this matter at the lowest level." Further, the AVCM was not similarly recommended for sexual harassment training, "for it is evident in his interview he has had the training."

* On 17 January 2011, the Commanding Officer sent her an email directing her to go through her supervisor for tasking "in light of all the things going on with your grievances [her EEO complaints]."

* On 24 January 2011, her first-level supervisor sent her an e-mail which stated: "I am directing that you notify me in those future instances where you cannot come to work due to illness, instead of calling only the folks in STUCON." Complainant asserted that she was being singled out again as she had never before been required to contact her supervisor directly when she called in sick.

The Agency dismissed this matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding Complainant had not alleged facts that would indicate she was "aggrieved."

The instant appeal followed.

ANALYSIS AND FINDINGS

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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

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. 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, such as the complaint at issue here, 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 agree with the Agency that under this standard, Complainant has failed to allege a viable sexual harassment claim concerning the incident on January 14, 2011. While the alleged language used by the AVCM in this single isolated incident may have been inappropriate and subject to misinterpretation, even viewed in the light most favorable to Complainant it is not sufficient severe or pervasive to state a viable sexual harassment claim. Complainant herself concedes that the comment was made in the context of the AVCM asking her to attend a meeting as a favor, and in that context, the isolated comment cannot be seen as sufficiently severe to be actionable.

However, Complainant has also alleged that management engaged in a series of retaliatory actions in response to her sexual harassment complaint over the January 2011 incident. 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). The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (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 states a claim).

Applying the above-described legal principles, we find that Complainant has alleged a viable claim of retaliatory harassment that requires further investigation. Of significance, Complainant alleges that, soon after she lodged her sexual harassment complaint, management started taking a series of actions that undermined her authority as a supervisor and treated her differently with regard to a number of personnel practices and explicitly stated the changes were made "in light of all the things going on with [her] grievances [EEO complaints]." Viewed in the light most favorable to Complainant, this is sufficient to state a claim of retaliation. Only an investigation of the merits of this claim will reveal whether or not actual unlawful retaliation occurred.

Accordingly, the Agency's final decision dismissing Complainant's sexual harassment claim is AFFIRMED, but the dismissal of her retaliatory harassment claim is REVERSED and the claim is REMANDED to the Agency for further processing pursuant to the following Order.

ORDER (E0610)

The Agency is ordered to process the remanded claim (retaliatory harassment0 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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 (M0610)

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 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 77960, Washington, DC 20013. 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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

December 11, 2012

__________________

Date

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0120113098

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120113098