0120123212
08-22-2014
Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120123212
Agency No. FWS120606
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 11, 2012, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Fish and Wildlife Biologist at the Agency's facility in Atlanta, Georgia.
On March 2, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 14, 2011, Complainant and several other coworkers received an from her supervisor expressing dissatisfaction with a report Complainant had worked on that had been sent to Washington and returned with negative comments. While the email did not mention Complainant by name, she asserts that everyone who received the email knew she had worked on the report. Complainant asserted that the tone of the email was to communicate that the report was an embarrassment to the region. She alleged that the supervisor sent it to everyone, including those not involved in the project, to undermine and embarrass Complainant in retaliation for a prior EEO complaint she had filed which was under investigation at the time.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, as well as for untimely pursuing her EEO complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
However, the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant must allege that: 1) s/he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also, EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim).
After careful review of the complaint and related EEO counseling materials, we concur with the Agency's determination that Complainant has failed to state a viable claim of retaliation. Here, the supervisor forwarded an email from Washington to her staff members containing criticism of a report produced by the office. The email basically focused on what needed to be done to prevent being such criticism in the future. Neither Complainant nor anyone else was identified by name as one of the staff members who worked on the project, although we will assume her assertion was correct that everyone knew she was involved. In sum, we find that under the circumstances as alleged, and viewed in the light most favorable to Complainant, this allegation amounted to no more than a relatively trivial harm that would not reasonably be likely to deter an employee from engaging in protected activity. Therefore, we agree that the matter as alleged, without more, fails to state a viable claim of unlawful retaliation that requires further investigation.
Because we find the matter does not state a viable claim of retaliation, we need not address the Agency's alternate reason for dismissing the complaint as untimely raised.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 (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
August 22, 2014
__________________
Date
2
0120123212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123212