0120120889
05-08-2013
Tammy L. Wilson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Tammy L. Wilson,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120120889
Agency No. HHS-IHS-0412-2011
DECISION
On November 30, 2011, Complainant filed a timely appeal with this Commission from the Agency's decision dated October 17, 2011, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pharmacy Technician at the Agency's Indian Hospital facility in Claremore, Oklahoma.
On July 21, 2011, Complainant contacted the EEO Counselor regarding a claim of harassment. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File her formal complaint. On August 23, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (51) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when she was subjected to harassment. In support of her claim of harassment, Complainant indicated that the following events occurred:
1. On or about July 7, 2011, Complainant became aware that she was only going to have one hour placed in her performance review with regard to her time keeping duties although no limits were imposed on collateral duties for other younger technicians including previous time keepers.
2. On or about June 9, 2011, Complainant became aware that the faxes to the Diabetic Office were not going through for the younger technicians. She noted that when the same situation occurred with her, she was publicly and openly confronted by management for the same error.
3. On or about July 5, 2011, Complainant's request for time off for July 6, 2011, was denied and the reason for the denial was that the management official (MO1) could not approve any time for that week or the next morning. However, on July 6, 2011, MO1 encouraged and allowed all of the younger technicians to have time off at the same time on that day.
4. On or about May 25, 2011, Complainant became aware that management was contacting a younger technician by text message on her cell phone but did not communicate to Complainant in the same manner.
5. On or about May 4, 2011, Complainant was singled out for having the internet up at the front window. Complainant indicated that the younger technicians are not singled out when they commit the same act.
6. On or about March 5, 2011, Complainant had to go to another supervisor to get assistance for leave approval for an emergency medical appointment. Complainant indicated that other younger employees do not have to do this.
7. On or about March 4, 2011, Complainant became aware that the younger technicians expressed that upon going in Inpatient pharmacy, they always have to ask questions because it is so long between the times they go to inpatient. However, Complainant indicated that when Complainant asks questions or receives assistance, Complainant is treated as incompetent.
8. On or about February 28, 2011, Complainant was made to sign a statement regarding her mistakes by management.
9. On or about February 24, 2011, Complainant was corrected for a faxing error in front of most of her younger co-workers.
10. On or about February 23, 2011, Complainant spoke to another management official (MO2) about the harassment she was facing. MO2 threatened to walk Complainant to Human Resources.
11. On or about January 21, 2011, MO1 openly demeaned Complainant in front of her co-worker by accusing Complainant of not using common courtesy and demeaning Complainant's character.
12. On or about October 8, 2010, Complainant was asked to sign a letter of counseling by MO2.
13. On or about July 2010, Complainant became aware that the ordering technician had omitted placing the order for the Out Patient pharmacy which resulted in many outages, but this omission was not documented. Complainant noted that her performance appraisal included omissions or errors that were less in magnitude.
The Agency dismissed claims (4) - (13) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely contacting the EEO Counselor. The Agency noted that Complainant was aware of the time requirements but failed to raise these events in a timely manner. The Agency then dismissed claims (1) - (3) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim for the Agency found that the events raised did not constitute a harm. Finally the Agency also reviewed Complainant's claim of harassment and found that claims (1) - (13) were not severe or pervasive enough to state a claim. The Agency also noted that Complainant alleged separate events and different management officials. As such, the Agency dismissed Complainant's claim of harassment for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1)
ANALYSIS AND FINDINGS
A review of the record shows that Complainant filed a formal complaint alleging a single claim of harassment. As such, we find that the Agency improperly dismissed claims by looking at them in a piece meal fashion. Therefore, we shall address the dismissal in terms of Complainant's single claim of a hostile work environment based on events that occurred from July 2010 through July 7, 2011.
Dismissal - Untimeliness
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. We note that the complaint filed by Complainant was a single claim of harassment. The most recent event occurred on July 7, 2011. Complainant contacted the EEO Counselor on July 21, 2011, well within 45 calendar days of the most recent event. As such, we find that Complainant's claim of harassment was raised in a timely manner.
Dismissal - Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Here, as noted above, Complainant asserted a single claim of discrimination, namely, that she was subjected to a hostile work environment based on her age and/or prior EEO activity. The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Complainant asserted that management would verbally counsel her in front of co-workers, apply different rules regarding leave requests, provided Complainant with less time to do her collateral duty, and communicated with younger co-workers in a different method than how they could communicate with her. Based on this series of events, we find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Therefore, we determine that the Agency's dismissal of the matter was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMANDED the complaint for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
May 8, 2013
__________________
Date
1 We note that Complainant stated on her appeal that she received the dismissal on November 1, 2011.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120889