0120091904
07-16-2009
Cynthia C. Carr, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia C. Carr,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091904
Agency No. 2003-0339-2009100402
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 12, 2009, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
During the relevant period, complainant was a Mail Clerk at a Colorado
facility of the agency. In a formal EEO complaint filed February 9,
2009, complainant alleged that the agency subjected her to a hostile work
environment on the bases of sex (female), disability (Marfan Syndrome and
developmental impairments), and reprisal for prior protected EEO activity.
To support her claim of harassment, complainant alleged that management
(1) failed to grant her request for reasonable accommodation dated
November 7, 2007, (2) on July 15 and August 10, 2008, did not inform her
of her monthly exceptions and performance reviews, (3) on October 23,
2008, made false accusations against her, (4) did not provide a printer
in the mail room or allow complainant to print or fax documents and, on
October 30, 2008, took a week to provide written requirements regarding
such restriction, (5) on November 13, 2008, issued complainant a warning
memo for unacceptable performance, (6) in November and December 2008,
respectively, failed to assist complainant and contested many of her
actions, (7) on February 4, 2009, failed to give complainant mail to
sort, and (8) extended complainant's performance improvement plan by
three weeks.1
In its March 12 final decision, the agency dismissed (1) pursuant to
29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending
before or has been decided by the agency or Commission; (2), (5) and (8)
pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same matter in
a negotiated grievance process that allows discrimination allegations;
and (3), (4), (6), and (7) pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. Specifically, the agency stated that, on
April 21, 2008, complainant filed a formal complaint (docketed as agency
no. 2003-0339-2008101942) regarding denial of reasonable accommodation
dated November 7, 2007 and the matter is currently pending for hearing.
Further, the agency stated that, on November 26, 2008, prior to filing
her formal complaint, complainant filed a union grievance as to (2),
(5) and (8). Lastly, the agency stated that the remaining claims do not
rise to the level of a hostile work environment and are not reasonably
likely to deter complainant or others from EEO activity. The instant
appeal from complainant followed.
On appeal, complainant acknowledged that a union representative filed
a grievance on November 26, 2008, but stated that she started EEO
counseling on October 30, 2008 and such was her election to proceed in
the EEO process. Further, complainant stated that she was placed on
administrative leave due to a Notice of Proposed Removal dated March 12
and she was unable to submit another request for reasonable accommodation
on March 16. Complainant stated that the agency treated her differently
due to her disability.
Regarding (1), the regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency or
Commission. Here, we agree with the dismissal of (1) based on evidence
of record that reasonable accommodation was raised in agency complaint
no. 2003-0339-2008101942. As to (2), (5) and (8), the regulation set
forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss
a complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits claims of discrimination. In the instant
case, the record shows that complainant filed a grievance concerning the
matters identified in (5) and (8) only, but not (2). The record shows
further that complainant filed the grievance before she filed her formal
complaint, and we note it is the date that a complainant files formally
that marks an election of forum. Additionally, the record shows that
under the terms of the agency's union agreement, employees have the
right to raise matters of alleged discrimination under the statutory
procedure or the negotiated grievance procedure, but not both. As the
record indicates that complainant elected to pursue the matter within
the grievance procedure, we find that the agency properly dismissed (5)
and (8).
Finally, regarding the remaining incidents ((2) - (4), (6), and (7)),
we agree with the agency that, even assuming true, complainant failed to
allege incidents that rise to the level of a hostile work environment.
However, for the basis of reprisal, under the Commission's broad view of
reprisal, a complainant need only allege that she suffered harassment that
was based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. See
EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20,
1998), at 8-15. In applying this standard, we find that complainant has
set forth an actionable claim of retaliatory harassment based on (2) -
(4), (6), and (7). Based on the above, we AFFIRM the dismissal in part
and REVERSE and REMAND it in part consistent with this decision and the
Order below.
ORDER
The agency is ordered to process the remanded claim of retaliatory hostile
work environment harassment 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 (K1208)
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 (M1208)
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), 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 (T0408)
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 (Z1008)
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
July 16, 2009
__________________
Date
1 We note that we consolidated some of the alleged harassing incidents
under complainant's claim and numbered them different than the final
agency decision.
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0120091904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091904