0120140950
05-20-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120140950
Agency No. 2013-25218-FAA-05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 19, 2013, 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
During the period at issue, Complainant worked as an Accountant at the Agency's Office of Operational Services, Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma.
On October 17, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleging that the Agency subjected her to discrimination on the bases of race, color and in reprisal for prior EEO activity.
On November 19, 2013, the Agency issued the instant final decision. The Agency framed Complainant's claims as follows:
1. in May 2013, Complainant was allegedly harassment by management and coworkers concerning a work assignment; and
2. when Complainant reported alleged harassment to the Agency's Accountability Board, a "biased" investigator was assigned to the case.
The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). With respect to claim 1, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
Regarding claim 2, the Agency found that this matter constituted an impermissible collateral attack on the Accountability Board process. The Agency stated that Complainant should have raised her allegations through the Accountability Board process, not through the EEO process.
Complainant, on appeal, asserts that she has been subjected to ongoing harassment and that she timely initiated EEO contact with respect to her hostile work environment claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency improperly framed the formal complaint. A review of the formal complaint reflects that Complainant is alleging a hostile work environment. Complainant in her formal complaint makes reference to having been harassed. The various incidents comprising Complainant's harassment claim are set forth in an attachment to the instant formal complaint.1 The alleged incidents include, but are not limited to, the following alleged actions: defamation of character; slander; her raise was on hold due to additional security clearances that had to be performed and Agency management would not answer her follow-up questions; Agency management requiring minority employees attend staff meetings while the Caucasian employees were not required to attend meetings; earning less than other similarly situated employees; not being provided training while others were provided training; and wanting more substantial work, and not merely the mundane work that other Caucasian accountants did not want to do.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(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).
We find that the Agency improperly dismissed claim 1 for failure to state a claim. The formal complaint and pre-complaint documents identified a series of incidents that include Complainant was harassed by Agency management and co-workers. As a remedy, Complainant requested that training, an increase in her salary, be moved to the Academy AMA, and compensatory damages. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Upon review of claim 2, we find that the Agency improperly construed this matter as a collateral attack upon the Accountability Board process. The essence of this claim cannot be viewed in isolation, but should instead be viewed in the context of the harassment claim, referenced above. Specifically, Complainant stated that the Accountability Board and Human Resources "should select someone within the organization (manager/supervisor) who has not been personally involved in any way in the alleged misconduct. [investigator] should have never conducted the management inquiry because she was personally involved as expressed in my initial email to [Agency official]." We therefore determine that the Agency improperly dismissed claim 2 for failure to state a claim.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile work environment) 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 (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 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), 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
May 20, 2014
__________________
Date
1 The record does not contain a copy of the EEO Counselor's Report.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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