0120181523
08-15-2018
Becki P,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becki P,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 0120181523
Agency No. DHANCR 17-0072
DECISION
On March 29, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 19, 2018, 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
At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Music Therapist at the Agency's Fort Belvoir Community Hospital, Intrepid Spirit Center in Fort Belvoir, Virginia.
On November 5, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to a hostile work environment based on her sex (female) when the Director, Intrepid Spirit Center sexually harassed her on July 5, 2017.
The Agency dismissed the complaint for failure to state a claim.
Complainant alleged the following. Under the implied or explicit ruse of discussing creating a permanent Agency Music Therapist position she could fill, she accepted an off-site dinner invitation by the Director, Intrepid Spirit Center. At the dinner, the Director asked invasive questions about her personal life, commented on her appearance, rubbed her arm without her consent, tried to make plans outside work including work trips, and after dinner asked to come into her apartment. She verbally rejected the Director's request, saying this was not going to happen. At one point, even after she demonstrated clear boundaries about maintaining a professional relationship, the Director said, "if we continue going on dates like this, you probably shouldn't tell anyone at work."
Complainant added as follows. The next day she and a colleague met with the Director about a patient and he made comments that made her feel diminished (unspecified) and asked if she felt he was undermining the colleague. A week later, the Director met with her and attempted to make an apology for making her feel uncomfortable. The Director asked her to "erase" his request to engage in a romantic relationship, and said "I hope you can get past this awkwardness."
Complainant contended that because of the incident on July 5, 2017, she asked her staffing firm for a reassignment. Her request was granted, and on August 31, 2017, she started working as a Neurologic Music Therapist at Fort Hood, Texas.
The Director countered (apparently through his attorney) with the following. A few months before the dinner, it was discussed that if the music therapy program continued to grow beyond a successful pilot program, the hospital would need to make it a core program, which would mean the music therapy provider would become an Agency employee in the clinic. Complainant was enthusiastic about the possibility. He did not ask Complainant for dinner using the ruse of discussing creating an Agency position for her. Instead, he asked her to dinner, saying he was separated from his wife and was trying to meet as many people as possible socially. As he dropped Complainant off after dinner at the curbside of her apartment, he asked if she would like to go out on a date in the future, she said she had a boyfriend, and he sensed that made the situation awkward. The next day he met with Complainant, told her the dinner was not a date, and apologized if he made her feel uncomfortable.
The record contains a completed questionnaire designed to elicit information on the employment status of an individual, including whether the Agency is the common law joint employer thereof. The person who completed the questionnaire is unidentified. The responses therein reflect that prior to being reassigned to Fort Hood, Complainant served the Agency at Fort Belvoir for almost two years, an Agency supervisor/manger directly assigns her work, and an Agency supervisor/manager monitors her time and attendance. In its FAD, the Agency found that Complainant worked on Agency premises using Agency equipment to perform her work, was directly supervised by the Agency, and that her time and attendance was supervised by the Agency (but the staffing firm approved her leave requests).
In its FAD, the Agency found that Complainant's complaint failed to state a claim because she was an employee of the staffing firm, not the Agency, and her allegations did not rise to the level of actionable harassment. The instant appeal followed.
The parties make no comment on appeal.
ANALYSIS AND FINDINGS
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. 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).
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. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22. 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, 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.
For purposes of determining whether Complainant's claim of harassment rise to the level of an actionable claim, we must accept her allegations as alleged. Complainant alleged that under the guise of a work meeting, the Director invited her to dinner off-site and treated it as a date, that on the veiled date he made unwelcome advances of rubbing her arm, proposed other outings with her, and asked if he could go into her apartment. In essence, Complainant alleged that the Director made an unwelcome pass at her, which she rebuffed.
Other than the evening of the dinner date, Complainant does not allege that the Director made further advances to her or threatened her - she merely alleged that the day after the dinner in a meeting with her and a colleague the Director was snippy toward her. Complainant concedes that shortly thereafter, the Director tried to apologize to her for making her feel uncomfortable, asked her to erase his request to engage in a romantic relationship, and said he hoped she could get passed the awkwardness. These words were consistent with the Director seeking to return things to the way things were before the dinner date, i.e., making no further advances and not threatening her in any way.
Given Complainant's allegations, we understand why she felt extremely uncomfortable. The Director's actions on July 5, 2017, were highly inappropriate because he was in a positon of power over Complainant. But we find that his behavior was not sufficiently severe or pervasive to rise to the level of actionable harassment.
Because we find that Complainant did not state a claim of harassment, we need not address whether she was jointly employed by the Agency.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 15, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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