closed0120142371
10-23-2014
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. 0120142371
Agency No. FWS-14-0084
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 18, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Chief, Budget, Accounting, Property Management at the Agency's facility in Atlanta, Georgia. On March 3, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), age (52), and in reprisal for prior protected EEO activity.
In its final decision, the Agency determined that Complainant's complaint was comprised of the following claims:
1. On December 20, 2013, Complainant became aware that the Assistant Regional Director (ARD) of Budget and Administration directed the Chief of Contracting and General Service (CGS), the Contracting Officer/Branch Chief of CGS, the Chief of Human Resources and the Human Resources Specialist to falsify several personnel actions for Complainant's subordinate, implicating Complainant in potential and/or the perception of wrongdoing further preventing Complainant from effectively performing her job.
2. On December 18, 2013, ARD Budget and Administration told Complainant that her subordinate was going to be reassigned to CGS by December 31, 2013.
3. From September 10, 2013 until November 20, 2013, the Acting Chief, Budget, Planning and Financial Services (BPFS) used intimidation tactics to harass the Complainant to get Complainant to approve an extended detail for Complainant's subordinate to CGS.
4. The Acting Chief of BPFS, Acting ARD of Budget and Administration, Deputy Regional Director and Regional Director failed to consult with Complainant prior to detailing her subordinate to CGS starting March 11, 2013, and failed to consult with Complainant again regarding another detail effective September 2013 through March 2014.
The Agency dismissed Complainant's complaint for failure to state a claim. Regarding claim (1), the Agency reasoned that Complainant had not yet been implicated in any wrongdoing. Regarding claim (2), the asserted that Complainant did not demonstrate how the reassignment of her subordinate effected a term, condition, or privilege of her employment. Regarding claims (3) and (4), the Agency stated Complainant failed to demonstrate that the terms, conditions, or privileges of her employment were adversely affected when Management failed to consult with her prior to detailing her subordinate.
The instant appeal followed. On appeal, Complainant reiterates that she has been subjected to unlawful harassment and retaliation.
ANALYSIS AND FINDINGS
Upon review of the record, we find that Complainant is alleging a hostile work environment claim. We find that the Agency improperly fragmented complainant's claims instead of viewing them collectively. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a 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, supra 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.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Upon review of the record, we find that Complainant is alleging that certain Agency officials did not involve her in numerous decisions pertaining to her subordinates (such as details for the subordinates, extension of details for subordinate staff, reassignment etc). Complainant asserts that these various actions took away her supervisory authority and resulted in an increased workload for her branch. Upon viewing the alleged incidents collectively, we find that the alleged incidents when viewed collectively in the light most favorable to Complainant set forth an actionable claim of harassment.
Accordingly, we REVERSE the Agency's final decision 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 in accordance with 29 C.F.R. � 1614.108. 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 (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
October 23, 2014
Date
2
0120142371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142371