01A21254_r
01-23-2003
Vicki D. Davis, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Vicki D. Davis v. Department of the Army
01A21254
January 23, 2003
.
Vicki D. Davis,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21254
Agency No. AVEUFO0109B0280
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 21, 2001, 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 alleged that she was subjected to discrimination
in reprisal for prior EEO activity when she was subjected to ongoing
harassment which culminated in her detail/reassignment. Complainant
specifically listed the following incidents of harassment:
On April 21, 2001, complainant's supervisor (S1), by signing complainant's
timecard, knowingly charged her 9 hours of annual leave per day, resulting
in an overcharge of 4 hours.
On August 21, 2001, S1 questioned complainant's sick leave despite an
�unwritten policy� that permits employees to makeup leave, if the leave
is made-up on the same day.
On September 13, 2001, Person A gave complainant a memorandum notifying
her that effective September 17, 2001, she was being detailed until her
official reassignment on October 7, 2001.
On June 20, 2001, Person B, Deputy Director of Public Works, wrote
complainant's new position description (#EU10705) for another
organization.
On April 20, 2001, S1 informed complainant that he was going to split
her workload.
On September 5, 2001, complainant surprised her supervisor by coming
to see him �because [she] never came to talk with him.� Complainant
alleges that during the discussion with her supervisor, S1 stated that
she was the ringleader in the �witch hunt� and that he would not leave
her alone until she leaves the organization. S1 further threatened to
use statements from organizations and installations against complainant.
On October 5, 2001, Person C, a contract employee, made a statement
to Person D about complainant regarding how quickly she was
reassigned. Person C also stated that, �we got rid of one of them and
now we just have one more to get rid of.�
On September 14, 2001, Person E was tasked with the duty of making sure
that complainant cleared the office by close of business. Person E asked
for the key to complainant's office, her LCR card and her PW badge and
then came back and asked if complainant was shredding paper.
Favoritism is shown to a White employee (Person F) in that she comes to
work when she is ready, is allowed to make-up time, is absent for over
three days without a doctor's statement, is allowed to perform the duties
she wants, is allowed to take longer lunches without making up time,
and voices her opinion on issues she doesn't agree with.
The agency dismissed issues (a) through (h) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
With regard to issue (a), the agency stated that management acknowledged
its error and a corrected timecard was submitted by the timekeeper and
complainant's leave was credited as of May 5, 2001. Thus, the agency
argued that complainant failed to show that she suffered a harm to a term,
condition or privilege of employment. With regard to issue (b), the agency
notes that although complainant was charged 4 hours of sick leave on the
date in question, the agency restored 2.5 hours and complainant agreed
that the remaining hours charged as sick leave were correct. Thus, the
agency claimed that complainant failed to show that she was aggrieved.
With regard to issue (c), the agency stated that the new position
complainant was detailed/reassigned to offers the same benefits, salary,
and similar job functions. Thus, the agency concluded that since the
detail/reassignment does not result in any loss of benefits, it does not
constitute a material harm to complainant. With regard to issue (d),
the agency stated that although Person B wrote complainant's position
description, he did not classify her position. The agency concluded
that complainant failed to show that she was aggrieved with regard to
this issue. With regard to issues (e), (f), and (g), the agency stated
that since no personnel action was taken regarding complainant, then the
incidents do not constitute a direct or personal deprivation sufficient
to render her aggrieved.
Alternatively, the agency dismissed issue (g) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for raising a matter that has
not been brought to the attention of an EEO Counselor and is not like or
related to a matter on which the complainant has received counseling.
With regard to issue (h), the agency stated that complainant did not
experience a loss or harm which affected a term, condition, or privilege
of employment. The agency dismissed issue (i) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(7), for failure to cooperate.
The agency states that on November 2, 2001, complainant received the
agency's Request for Information with regard to issue (i) which informed
complainant that she had 15 days to provide the requested information.
The agency notes that in a response to the agency postmarked November 16,
2001, complainant stated that she �decline[d] to provide any additional
information.� Thus, the agency argues that due to complainant's failure
to respond, issue (i) should be dismissed for failure to cooperate.
On appeal, complainant acknowledges that issues (a) and (b) have been
corrected. Complainant states that her workload was transferred to a
government contractor who received a pay raise while complainant had to
fight for her GS-1106-07 level. Complainant reiterates that a co-worker
made the statement that was cited in issue (g). Complainant states that
after the way she was treated on September 14, 2001, she experienced
an anxiety attack and has suffered from depression since this date.
Complainant reiterates her position that Person F, a White woman,
is treated more favorably by management. Complainant states that she
has proof of disparate treatment but is afraid to share the information.
Complainant claims that she has provided numerous electronic mail messages
showing continuous harassment from December 2000 until her reassignment
in September 2001. With regard to the reassignment, complainant states
that the experience and training that existed at her previous position
does not exist at her new position. She states that although she was
reassigned to a procurement position, she is not performing the duties
commensurate with such a position.
In response to complainant's appeal, the agency reiterates its arguments
in favor of dismissal of complainant's complaint. Further, with regard
to issue (c), the agency states that complainant was transferred from a
GS-7 Procurement Technician spot with Public Works to a GS-7 Procurement
Technician spot with the Directorate of Logistics. The agency states
that the reassignment was a lateral transfer without loss of benefits.
The agency acknowledges that complainant did assume new duties with the
transfer; however, the agency states that her job description, title,
series, grade and pay were unaffected by the move.
Upon review, we find that the incidents identified in issues (a)-
(h) are not sufficiently severe or pervasive to constitute harassment.
Further, we find that complainant has not established that incidents
(a),(b),(d),(e),(f),(g), and (h), resulted in an injury or harm to a
term, condition, or privilege of employment. Accordingly, the agency's
decision to dismiss issues (a),(b), and (d) - (h), for failure to state
a claim was proper.
With regard to issue (c), we find that the agency improperly dismissed
this issue for failure to state a claim. In the present case, complainant
contends that she was reassigned to a new position with different duties
and less training opportunities. Because complainant alleges that the
reassignment was based on reprisal, she has stated a claim within the
purview of the EEOC regulations.
With regard to issue (i), we find that the agency properly dismissed
this issue for failure to cooperate. The record contains a letter dated
November 1, 2001, wherein the agency requested additional information
regarding issue (i) of complainant's complaint. The letter requested the
specific dates of the incidents and the names of the persons involved
besides complainant, Person F, and S1. The letter advised complainant
that failure to respond to the request within fifteen calendar days could
lead to dismissal of this issue. In her response, complainant stated
that she was declining to provide any additional information. On appeal,
complainant asserts that she did not provide the requested information
because she was afraid that the EEO office would give the information to
management. The Commission finds that the agency's request for the dates
of the incidents was reasonable and that complainant has explicitly stated
that she will not comply with the agency's request. The agency can not
be expected to investigate the claim without complainant explaining the
time frames at issue; nor can the agency determine whether such a claim
was raised in a timely manner. Therefore, we find that the dismissal
of issue (i) for failure to cooperate was proper pursuant to 29 C.F.R. �
1614.107(a)(7).
Accordingly, the agency's decision to dismiss issues (a), (b), (d), (e),
(f), (g), (h), and (i), is AFFIRMED and the decision to dismiss issue (c)
is REVERSED. We REMAND issue (c) to the agency for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
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 (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
January 23, 2003
__________________
Date