0120082616
11-10-2008
Wanda Thomas, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Wanda Thomas,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082616
Agency No. ARSHAFTER05AUG10740
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 16, 2008, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
On August 19, 2005, complainant initiated contact with an EEO Counselor
alleging that the agency discriminated against her based on race (African
American), color (Black), and sex (female) when her immediate supervisor
(S1) issued a threatening email to her and issued her two counseling
letters. In a formal EEO complaint dated October 16, 2005, complainant
alleged that she was subjected to hostile work environment harassment
as the only supervisor within her protected classes. Complainant added
the basis of reprisal for prior EEO activity. Specifically, complainant
alleged that S1 and her second level supervisor (S2) were abusive and
treated her disparately as evidenced by S1 (1) on June 29, 2005, sending
complainant an email threatening to counsel her if he had to respond
to any of her staff's personnel actions while she was on TDY and leave,
(2) on July 25, 2005, issuing complainant a counseling letter claiming
her performance "needs improvement," based on past personnel actions that
were resolved two months earlier, and (3) on August 12, 2005, issuing her
a secondary "needs improvement" counseling letter, based on S2 allowing
complainant's staff member to make claims against her but failing to
discuss the claims with complainant and then penalizing her for them.
Further, complainant alleged that S1 (4) demoted her from a GS-12 to a
GS-9, (5) in August 2005, deleted her hiring and selection duties for
staff, (6) assigned a colleague to interview referrals for her branch,
(7) met with two of her staff without her present and encouraged them
to deliver assignments to him instead, (8) approved overtime for her
subordinate without advance notice but did not allow her to work overtime,
(9) refused to sign complainant's worker's compensation claim, stating
that it was fraudulent, and (10) cancelled a counseling session she
set-up for two of her staff and copied them on the cancellation email.
On April 1, 2008, an EEOC Administrative Judge (AJ) dismissed
complainant's claim. He stated that her claim was precluded by collateral
estoppel because she had an opportunity to litigate her harassment claim
as an affirmative defense for her removal action before the Merit Systems
Protection Board (MSPB). Further, the AJ stated that, in a November 2006
decision, the MSPB found that complainant failed to establish pretext
based on any of her allegations of discrimination. In its April 16,
2008 final decision, the agency fully implemented the AJ's dismissal.
The instant appeal from complainant followed. On appeal, complainant
stated that the MSPB Administrative Judge addressed her removal claim
only.
The record shows that, in an Initial Decision dated November 27,
2006, an MSPB Administrative Judge stated that complainant alleged
that discrimination, reprisal and harassment by S1 and S2 occurred
prior to her medical leave of absence from work and subsequent removal.
The MSPB Administrative Judge affirmed complainant's removal and found
that complainant failed to show her removal was based on discriminatory
motives or reprisal for prior EEO activity.1 Complainant filed a petition
for review with the full Board, which was denied in a Final Order dated
January 12, 2007.
After a careful review of the record, we find that the agency's dismissal
of complainant's harassment claim is not consistent with 29 C.F.R. �
1614.107(a) and is improper. Harassment is not an agency action
over which the MSPB typically has jurisdiction. We recognize that,
at its discretion, the MSPB may consider harassment as it pertains to
an involuntary (constructive) discharge or retirement. However, such
is not the case here. Further, we conclude that the MSPB rendered a
finding as to complainant's removal from employment and not her claim of
hostile work environment harassment. Accordingly, we REVERSE the final
agency decision dismissing complainant's harassment claim and REMAND the
matter to the agency consistent with this decision and the Order below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
November 10, 2008
__________________
Date
1 We note that complainant's MSPB appeal, dated November 10, 2005, grieved
a removal, reduction in pay, termination during probationary period,
negative suitability determination, and other actions by S1 and S2.
Further, we note that the agency removed complainant from employment
in July 2006. The record shows further that the MSPB issued several
procedural decisions related to this matter, including one for lack
of jurisdiction, premature appeal, and denial of stay of complainant's
removal.
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0120082616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082616