0120121700
07-30-2012
Wanda F. Brumfield, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Wanda F. Brumfield,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121700
Agency No. ATL-12-0089-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 13, 2012, 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
Complainant worked as a Teleservice Representative at the Agency's facility in Tampa, Florida.
In May 2011, Complainant, in an earlier EEO complaint, alleged that she was subjected to sexual harassment by a coworker. On December 20, 2011, Complainant filed another EEO complaint (the one at issue in this appeal) alleging that since she reported the sexual harassment, she has been retaliated against by her supervisor and other members of management with a pattern of harassment sufficient to create a hostile work environment.
According to the Agency in its final decision, the harassment alleged by Complainant consisted of the following three incidents:
1. in mid-September 2011, Complainant learned that Agency management had transferred a Teleservice Representative, whom Complainant had accused of sexual harassment in a previous EEO complaint, to a "more desirable" office, while it had denied her own request for a transfer in May 2011 to avoid contact with the alleged harasser;
2. on September 30, 2011, Complainant's supervisor "fussed" at her in a curt and rude tone and Complainant was denied administrative support; and
3. on October 25, 2011, her supervisor issued Complainant a Performance Assessment Communication System (PACS) evaluation that contained negative feedback that could impair Complainant's future employment opportunities.
In its final decision, the Agency dismissed Complainant's entire complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that the alleged incidents were minor and isolated, were not materially adverse job actions, and not causally connected to Complainant's prior EEO activity. The Agency reasoned that even considered cumulatively, the incidents do not signify a workplace that was permeated with discriminatory intimidation, ridicule and insult or that altered Complainant's terms and conditions of employment, sufficient to state a claim.
The instant appeal followed. On appeal, Complainant maintains that her supervisor has engaged in an ongoing pattern of retaliatory actions since she alleged that her coworker sexually harassed her. Complainant maintains that several of the comments in her performance appraisal were intentionally written to reflect negatively upon Complainant and pertained to areas that were beyond Complainant's control. Complainant states that the accomplishments Complainant offered for her evaluation were not included. Complainant asserts that her supervisor is stopping Complainant's progress within the Agency, and this animus was manifested in the negative performance evaluation. She also argues that the Agency failed to justify why it permitted the person she accused of sex harassment to be transferred to the location Complainant requested, but did not afford her that benefit. She states that this is a gross injustice.
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.
In addition, 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). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
A fair reading of Complainant's EEO complaint, as well as the related EEO counseling report, reveals that in addition to three incidents of alleged harassment identified by the Agency in its dismissal decision, Complainant also provided other examples of incidents to support her claim of an ongoing retaliatory hostile work environment. Complainant stated that although she was selected to serve as a mentor, her supervisor did not allow Complainant to serve. When Complainant asked the supervisor why the supervisor limited Complainant's participation to only mentoring employees within her unit, her supervisor dismissed her concern. Complainant also overheard her supervisor tell a manager that she did not have an employee available to serve as a mentor. In addition, Complainant alleged that she was also selected to serve as a Technical Training Instructor, but to date, she has not acted in the capacity of an instructor or been permitted to perform any of the related duties. She also stated that her supervisor sometimes sits in Complainant's chair and physically stops Complainant from being able to perform her duties, which she finds hostile and intimidating.
Reviewing the alleged incidents collectively and applying the above-described legal principles, we find that Complainant has set forth an actionable claim of a pattern of retaliatory harassment that requires investigation and further processing. Moreover, Complainant's allegation concerning the negative performance appraisal states an independent claim of retaliation. Looking at Complainant's allegations in their totality and in the light most favorable to her, we find that she has alleged that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency in accordance with the following Order.
ORDER
The Agency is ordered to process the remanded retaliation/harassment claims 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 tends 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
July 30, 2012
__________________
Date
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0120121700
[Type text]
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2