0120180723
05-04-2018
Clotilde D,1 Complainant, v. Betty J. Sapp, Director, National Reconnaissance Office, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clotilde D,1
Complainant,
v.
Betty J. Sapp,
Director,
National Reconnaissance Office,
Agency.
Appeal No. 0120180723
Agency No. NRE00072017
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated November 2, 2017, 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 as an Information Systems Security Engineer contractor for Vencore, Inc, at an Agency facility in Chantilly, Virginia.
On August 29, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From November 2015 to March 1, 2017, a Senior Master Sergeant (SMS) and an Acting Chief of Security (ACS) for the Agency required Complainant to perform duties and responsibilities outside of her Statement of Work (SOW), violating Agency policy on separation of duties.
2. On February 23, 2017, a Program Manager (PM) for a different contractor (LM) falsely accused Complainant of delaying the deployment of software by letting the media sit in the Information Systems Security Officer (ISSO) queue for over a week.
3. On February 28, 2017, during a management meeting, a Manager (M) for contractor LM incorrectly reported to the government management team that Complainant refused to assist M concerning a spare hard drive.
4. On May 10, 2017, SMS caused Complainant to be left out of a Technical Exchange meeting with LM by insinuating that Complainant is difficult to work with.
5. On May 16, 2017, ACS advised Complainant that she would no longer visit a customer site and another employee would go instead.
6. On or around May 23, 2017, another contractor (MT), discriminated against and/or harassed Complainant when the Personnel Security Officer (PSO) for MT falsely accused Complainant of not being a team player and purposely excluding PSO from pertinent information related to her duties.
7. On May 23, 2017, ACS communicated lies about Complainant to her Vencore Program Manager in an attempt to tarnish Complainant's reputation and ultimately provide justification for removing Complainant from the program.
The Agency dismissed the claims under a number of different theories. The Agency initially found that claims 1 through 3, inclusive, constituted one claim of harassment, and claims 4 through 7 constituted a second, separate claim of harassment. With regard to the first claim of harassment, (claims 1-3) the Agency found that Complainant's EEO Counselor contact was untimely. The Agency next found that Complainant was not a Federal employee but a contractor. Finally, the Agency found that the actions complained of were insufficiently severe and/or pervasive to constitute harassment.
ANALYSIS AND FINDINGS
Because we find that Complainant's allegations of harassment are insufficient to state a claim, we need not address the issue of whether or not Complainant is a Federal employee, or may be deemed a Federal employee for the purposes of this complaint. We note that 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. Following a review of the record we find that the actions complained of are insufficiently severe and/or pervasive to meet this burden.
CONCLUSION
The Dismissal 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
May 4, 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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