0120140345
10-14-2014
Complainant, v. Cheryl A. LaFleur, Acting Chairman, Federal Energy Regulatory Commission, Agency.
Complainant,
v.
Cheryl A. LaFleur,
Acting Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal Nos. 0120140345
0120140824
Agency Nos. EEO-2013-MAL-002
EEO-2013-MAL-003
DECISION
Pursuant to 29 C.F.R. 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 7, 2013 and November 20, 2013 final decisions concerning the two captioned EEO formal complaints that claimed 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the sake of administrative efficiency, the Commission exercises its discretion and consolidates the two appeals. See 29 C.F.R. � 1614.606.
BACKGROUND
During the period at issue, Complainant worked as a Trial Attorney at the Agency's Office of Administrative Ligation (OAL) in Washington, D.C.
Complainant filed two formal complaints on April 18, 2013 and September 10, 2013, respectively.
Agency No. EEO-2013-MAL-002 (hereinafter referred to as Complaint 1)
On April 18, 2013, Complainant filed a formal complaint claiming that the Agency subjected her to discrimination on the bases of sex, disability, age, and in reprisal for prior EEO activity when:
1. in 2013, management required her to move from one office (Room 32-39) to another office (Room 32-23), three doors down the hallway;
2. on January 2, 2013, she received an email from an administrative employee in her office asking her for an estimate of the number of bins needed for her office move;
3. on January 10, 2013, the Director of the Legal Division had a conversation with the Branch III Chief about her office move;
4. management denied her requests for accommodations for her disabilities and to remain in Room 32-39;
5. management revoked accommodations for her disabilities. Complainant alleged that her new office is in a narrow corridor, has offices opposite her office, is further away from office equipment, the galley, vending machines, the lavatory, and two of OAL's three meeting rooms, is in a noisier area, and is closer to exterior construction, which leads to possible noise and air issues. In addition, Complainant alleged that her ability to use an electric cart is impaired because of glass panels and a "wall protrusion" on each side of the corridor;
6. management denied her request for reconsideration of its alleged denials of her requests for accommodations and to stay in Room 32-29;
7. management took "actions and inactions" relating to her request for accommodations with packing and unpacking during her office move;
8. management denied her requests for accommodations for disabilities regarding IT and placement of the telephone and work station computer in Room 32-23 and failed to provide her with a CPU as opposed to a laptop computer;
9. management delayed in removing her from the Trans Alaska Pipeline System (TAPS) Case Team after she requested reassignment;
10. on February 6, 2013, she received an oral mid-cycle review in which her supervisors told her that her work was unsatisfactory;
11. she stated that she was continually denied credit for work performed and hours worked on TAPS;
12. OAL employees were told that mid-cycle reviews would be performed by January 25, 2013 but her review was given on February 6, 2013;
13. on February 6, 2013, she received an email scheduling a review with her supervisors eight minutes from the time of the email;
14. she received unfair criticism during her mid-cycle review;
15. during her mid-cycle review, her supervisor stated that Complainant does not work at the GS-15 level, a statement she believes is untrue;
16. during her mid-cycle review, she was criticized for failing to meet a deadline but she does not agree with the criticism;
17. during her mid-cycle review, she was told that her work for the Team Lead was unsatisfactory but she does not agree with that characterization;
18. during her mid-cycle review, she was told that her work product for an assignment from a named Agency official was unsatisfactory but she does not agree with that characterization;
19. management did not provide her with a memorandum of counseling during her mid-cycle review. Complainant stated that she received the memorandum of counseling more than one week after her review;
20. Complainant alleged that if her work was deficient, her managers have been untimely in addressing deficiencies;
21. as she was leaving the supervisor's office after her mid-year cycle review, the supervisor stated she would receive guidance about "teaming;" however, this topic was not discussed in the review and she did not receive any further information on it; and
22. she did not receive a 25-page packet of instructions for mitigating to a new computer and had to use a photocopy she received from a co-worker to assist with mitigation.
In its October 7, 2013 final decision, the Agency expressly dismissed Complaint 1 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. Specifically, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
Further, the Agency appears to argue that Complainant has abused the administrative EEO process, because in prior complaints, Complainant had previously, and repeatedly, filed similar or identical allegations as those raised in the instant formal complaint.
Agency No. EEO-2013-MAL-003 (hereinafter referred to as Complaint 2)
On September 10, 2013, Complainant filed a formal complaint alleging that she was subjected to harassment and a hostile work environment on the bases of disability, age, and in reprisal for prior EEO activity when:
1. management placed her on a Performance Improvement Plan (PIP) without a definitive end, allegedly failed to give her adequate feedback, and required her to submit daily reports pursuant to the PIP;
2. management delayed in providing her a performance evaluation;
3. she sent an email on May 1, 2013 requesting IT assistance and continued access to preserved documents which Agency management denied;
4. management has been unresponsive to her concerns and requests about the handling of Privacy Act and confidential information;
5. management failed to address her safety concerns as they relate to emergency evacuation, specifically, she claimed she had been notified of a disabled evacuation plan and the two stairs chairs located in her office building are inadequate;
6. management unilaterally reassigned her to a facility with "disparate security, safety, and health provisions and facilities...;"
7. her co-workers increasingly expand dissemination of information relating to her by increasing the number of addresses receiving her email correspondence;
8. the EEO Counselor misstated her complaint, failed to list Hostile Work Environment as a basis for the complaint, omitted related matters, and did not provide an EEO closeout conference.
In its November 20, 2013 final decision, the Agency dismissed all the claims raised in the formal complaint on various procedural grounds. In a footnote, the Agency appears to argue that Complainant has abused the administrative EEO process, because in prior complaints, Complainant had previously, and repeatedly, filed similar or identical allegations as those raised in the instant formal complaint.
The Agency expressly dismissed the entire formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The Agency also dismissed claims 3, 5 and 6 for stating the same claims that were raised in prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claim 3 raises the same matter as raised in Agency Case No. EEO-2012-MAL-003 (filed complaint on September 4, 2012) when Complainant complained about "Concerns/matters re[:] preservation of documents/access to documents - preservation of evidence/potential evidence."
The Agency further found that claims 5 and 6 raise the same matter in Agency Case No. EEO-2010-MAL-001 (filed complaint on July 2, 2010) in which Complainant complained of the Agency lacking an adequate evacuation plan for disabled employees, and in Agency Case No. EEO-2011-MAL-001 (filed complaint on October 12, 2010) in which Complainant complained of evacuation and related safety matters.
The instant appeal followed.
ANALYSIS AND FINDINGS
Same claims (claims 3, 5 and 6 of Complaint 2)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. The Commission has consistently held that in order form a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incidents, and parties. See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
Regarding claims 5 and 6, the Agency properly dismissed this claim for stating the same claim that is pending before or has been decided by the Agency or Commission. With respect to claim to claim 5, the Agency stated that the alleged failure to address Complainant's safety concerns as they relate to emergency evacuation were raised in Complainant's July 2, 2010 complaint (Agency No. EEO-2010-MAL-001) in which Complainant complained of management's failure to address her safety and health concern.
We note that in regard to claim 6, the Agency stated that Complainant's allegation that her assigned building was "disparate in security, safety, and health provisions and facilities" claim was raisedin her October 12, 2010 formal complaint (Agency No. EEO-2011-MAL-001) in which Complainant complained of evacuation and related safety matters.
We find, however, that the Agency improperly dismissed claim 3 for stating the same claim that are pending before or has been decided by the Agency or Commission. Regarding claim 3, we note Complainant stated that on May 1, 2013, she sent an email requesting IT assistance and continued access to preserved documents which management denied. While this claim is similar to one raised in Complainant's September 4, 2012 complaint (Agency Case No. EEO-2012-MAL-003) concerning "Concerns/matters re[:] preservation of documents/assess to documents - preservation of evidence/potential evidence," it concerns a different time frame.
In sum, we find that claim 3 are not identical to Complainant's prior complaint because the elements of the subject claim is not identical to the elements of the prior complaint in time, place, incident, and parties. The Agency erred in dismissing claim 3 as identical to previously raised claim.
Complaints 1 and 2 (failure to state a claim)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing Complaint 1 and 2 for failure to state a claim. A fair reading of Complaints 1 and 2, Complainant claimed that she was subjected to a series of related incidents of harassment from 2003 through present. Specifically, Complainant stated that the Agency has been aware of my prior EEO activity at the Agency since 2003 and "FERC management has engaged in concerted action among its management to coordinate actions following my complaints. ...FERC has engaged in an ongoing pattern and practice of retaliatory discriminatory conduct violative of my rights fostering the hostile work environment about which I complain. The pervasiveness of FERC's actions and course of its conduct evidencing its animus to me."
As a remedy, Complainant requested "all appropriate remedies/and relief are requested, the granting of requested accommodations for my disabilities, compensatory damages, non compensatory damages, all costs and fees (including attorneys' fees, consultancy fees), reassignment to a mutually agreed position outside of OAL, credit for work performed, credit for hours worked, revocation of the unsatisfactory rating, assignment to a mutually agreed office space that accommodates my disabilities."
We also note in Complaint 2, Complainant requested "expungement of the PIP, appropriate remedies relating to ratings, cessation of FERC's failures to credit me appropriately for the work I perform, timely effective IT assistance..." These matters, taken together, state an actionable claim of harassment. 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).
Moreover, apart from Complaints 1 and 2, we note that other claims raised as part of the harassment claim (claims 4 - 8 of Complaint 1 and claim 3 of Complaint 2) can be reasonably construed as a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer has an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g., Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
Finally, we determine that the record does not support a dismissal for abuse of process. The Agency's determination that Complainant has repeatedly filed similar claims in other complaints, without more, does not support a dismissal on these grounds.
Accordingly, we AFFIRM the dismissal of claims 5 and 6 of Complaint 2 for stating the same claim. However, we REVERSE the dismissal of claim 3 of Complaint 2 for stating the same claim and dismissal of Complaint 1 in its entirety and Complaint 2 (excluding claims 5 and 6) for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment/hostile work environment and failure to provide reasonable accommodation) 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
October 14, 2014
__________________
Date
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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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