0120131472
08-06-2013
Susan M. Morris, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Susan M. Morris,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120131472
Agency No. 2012-7334-HQ
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 8, 2013, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On April 4, 2012, Complainant, a former Assistant Director at the Agency's Affirmative Employment & Diversity (AE&D), Office of Civil Rights (OCR) in Washington D.C. initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 21, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of race (Caucasian), sex (female), age (over 40), and in reprisal for prior protected activity when:
1. since March 2010, the Agency has prevented her from being reinstated to her former position;
2. in January 2011, she was terminated at the end of a stay by the Office of Special Counsel (OSC)/Merit Systems Protection Board (MSPB);
3. in January 2011, she was forced to retire;
4. since September 2011, the Agency refused to accept the findings and recommendations of OSC;
5. from October 2010 to January 22, 2011, the Agency did not reinstate her health insurance and life insurance benefits;
6. on two occasions in August 2010 and January 2011, she was banned from federal buildings open to the public, including all buildings occupied by the Agency;
7. on an unidentified date (but sometime to prior to April 20, 2011), a named Agency official referred to her as a "pink elephant" on a conference call;
8. on March 14, 2012, she learned OCR's AE&D office was dismantled;
9. on March 14, 2012, she learned the Special Emphasis Programs (SEP) were moved out of OCR; and
10. on an unidentified date, there was systemic discrimination of "civil rights employees" (Complainant and whistleblowers involved [in] OCR, OGC and OIC) by initiating their terminations and forced retirements.
Actions prior to the filing of the instant formal complaint
The record reflects the following salient actions relating to the subject claims. On March 23, 2010, Complainant was issued a notice of proposed removal for insubordination, wrongful disclosure of confidential personal information, misuse of supervisory authority, and the making of inappropriate statements in a work product. Thereafter, Complainant filed a whistleblower complaint concerning her proposed removal, on March 24, 2010. The Agency stayed the decision on Complainant's removal, pending the outcome of the OSC's investigation. On August 12, 2010, the Agency issued a removal decision. On August 13, 2010, Complainant received a notice instructing her not to enter the Agency's headquarters buildings.
On September 8, 2010, Complainant filed a complaint with the MSPB appealing the Agency's decision to remove her from Agency employment. In October 2010, OSC obtained a stay of Complainant's removal, from the MSPB, through January 22, 2011. The record reflects that the MSPB issued a decision dismissing Complainant's MSPB appeal without prejudice. The MSPB indicated that Complainant's appeal would automatically be re-filed after the stay obtained by OSC, was lifted. The record reflects that during the period in which the stay was in effect, Complainant returned to work.
However, once the stay expired, Complainant was again removed from Agency employment, effective January 22, 2011. At that time, Complainant was issued another notice instructing her not to enter Agency buildings. On January 24, 2011, the MSPB automatically re-filed Complainant's MSPB appeal.
On April 8, 2011, Complainant filed a civil action (identified as Civil Action No. 11-701 (RMC)) in the United States Court for the District of Columbia. Complainant later amended the instant formal complaint on May 26, 2011 by stating that the Agency discriminated against her on the bases of race, sex, age, and retaliation. On April 19, 2011, Complainant withdrew her MSPB appeal, and the MSPB dismissed the appeal with prejudice. The record reflects that on May 9, 2011, the Commission dismissed Complainant's earlier EEO complaint because the same matters were alleged in her civil action.
On May 3, 2011, Complainant sent a letter to the Administrator stating that a named Agency official had used the phrase "pink elephants" on a telephone call in which she believed was a reference to her and another employee. The record reflects that on July 8, 2011, the Agency filed a motion to dismiss Complainant's civil case, and Complainant filed a memorandum in opposition on August 18, 2011.
On September 20, 2011, OSC issued its report to the Agency recommending that the Agency take corrective action, as it found grounds to believe Complainant's removal constituted a prohibited personnel practice. On November 30, 2011, the Agency issued its response to the OSC report, declining to implement the recommended corrective action.
On February 6, 2012, the District Court ruled on the Agency's motion, granting it in part. Specifically, the District Court dismissed Complainant's termination claim for failure to exhaust administrative remedies due to prematurely withdrawing the claims from the MSPB. The District Court also dismissed Complainant's claims concerning reassignment, and age and reprisal discrimination for failure to respond to the Agency's motion to dismiss, and Complainant's harassment claim. The record reflects that the District Court determined that it would consider Complainant's 7-Day suspension claim.
Instant Final Decision and Appellate Arguments
In the instant February 8, 2013 final decision, the Agency dismissed claims 1 - 7 and 10 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on April 4, 2012, which it found to be beyond the 45-day limitation period. The Agency dismissed claims 3, 4, and 8 - 10 on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant failed to allege she suffered a personal loss or harm to a term, condition or privilege of her employment.
The Agency also dismissed claims 1 - 4 on the grounds that Complainant had already raised these matters in an appeal to the MSPB, citing 29 C.F.R. � 1614.107(a)(4). Finally, the Agency dismissed claims 6 - 7 on the grounds of the doctrine of res judicata because a judgment on the merits had been issued.
On appeal, Complainant argues that the Agency improperly dismissed the instant formal complaint on various procedural grounds. For instance, Complainant argues that her April 4, 2012 EEO contact was timely. Specifically, Complainant argues that in regard to claim 1, she was official terminated from the Agency on January 23, 2011 "when the mandatory MSPB stay expired. I was not returned to the agency up to and including the investigation, findings of retaliation, recommendations to return me to EPA, and closure of my OSC case in June 8, 2012 (Attachment D) long after I requested an EEO counselor. This refusal to return me is ongoing, retaliatory and discriminatory."
Further, Complainant argues that there is a conflict of interest involving one of the Agency attorneys. Complainant states that while the Agency official was one of the several Agency attorneys involved with her instant complaint, she was also involved "in a complaint I filed on a previous matter that is currently before the U.S. District Court."
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor contact (claims 1 - 7 and 10)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. 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.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The alleged discriminatory event occurred from March 2010 to January 2011, but Complainant did not initiate contact with an EEO Counselor until April 4, 2012, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding her claims more than 45 days prior to her initial contact with an EEO Counselor.
We find that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed claims 1 - 7 and 10 for untimely EEO Counselor contact.
Failure to state a claim (claims 8 - 9)
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).
The Agency correctly determined that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. In addition, to the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the Agency's final decision dismissing the instant formal complaint is AFFIRMED.1
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 (S0610)
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 (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
August 6, 2013
__________________
Date
1 Because we affirm the Agency's dismissal of claim 1 - 4, 6, 7, and 10 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim, raising the same matter in an appeal to the MSPB, and under the doctrine of res judicata).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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