0120131779
06-20-2013
Deborah A. Lyle, Complainant, v. Dan M. Tangherlini, Acting Administrator, General Services Administration, Agency.
Deborah A. Lyle,
Complainant,
v.
Dan M. Tangherlini,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120131779
Agency No. GSA13R9Q0044
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 1, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist at the Agency's Federal Acquisition Service, National Service Division, in San Francisco, California. On February 15, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of color (white) and reprisal (prior protected EEO activity under Title VII) when:
(1) on December 20, 2012, she was not invited to a retirement luncheon; and
(2) on December 21, 2012, she was subjected to negative comments regarding providing customer service.
The Agency dismissed the entire complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Moreover, the Agency determined Complainant failed to show that she was an aggrieved individual, as required by 29 C.F.R. � 1614.106(c), because she did not demonstrate that the cited events caused her direct harm to a term, condition, or privilege of employment for which there is a remedy. The Agency also stated that Complainant's harassment allegation resulting from the negative comments failed to state a claim because it was an isolated remark, which was not sufficiently severe or pervasive as to create a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that she suffered an adverse action for which there is a remedy because the two incidents caused her distress and emotional turmoil because they occurred in retaliation for her pending EEO Complaint1. Complainant seeks compensatory damages that include the value of the lunch and one hour of pay.
In response, the Agency stated that Complainant's complaint fails to state a claim because she cited isolated incidents. Further, the Agency contended that the retirement luncheon is not a privilege of employment for civil rights purposes, and that the negative remarks are insufficient to state a claim for harassment because Complainant did not suffer a loss to a term, condition, or privilege of employment.
ANALYSIS AND FINDINGS
In order to state a claim under the EEOC regulations, Complainant must show that she suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission has held that if "a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment." Barr v. U.S. Postal Serv., EEOC Appeal No. 0120113069 (Nov. 2, 2011).
In evaluating whether a hostile or abusive work environment existed, the Commission considers all the circumstances and determines whether a reasonable person in Complainant's position would have found the alleged behavior to be hostile or abusive. Cobb v. Dep't of the Treasury, EEOC Appeal No. 01960215 (Mar. 13, 1997). Incidents that are not sufficiently severe or pervasive, even if proven to be true and viewed in a light most favorable to Complainant, would not support a claim of harassment. Id.
We note, however, that anti-retaliation provisions are broader in scope and extend beyond workplace-related or employment-related retaliatory acts and harm. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Nonetheless, the harm must be materially adverse so that it is reasonably likely to dissuade "a reasonable worker from making or supporting a charge of discrimination." Id. at 68; See Drew v. U.S. Postal Serv., EEOC Appeal No. 0120091524 (June 18, 2009) (noting that adverse treatment, based upon retaliatory motive, that is reasonably likely to deter the charging party or others from engaging in protected EEO activity states a claim for retaliation). Further, the Supreme Court has mentioned that a "refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight" for purposes of a retaliation claim under Title VII. Burlington, 548 U.S. at 69.
In this case, Complainant claimed she lost one hour of compensation when she was not invited to the retirement luncheon, that this caused her emotional harm, and that she suffered distress and emotional turmoil when she received negative comments regarding customer service. The negative comments were neither part of a performance evaluation, nor accompanied by any adverse action that affected the performance of her duties. Further, Complainant did not state she suffered a materially adverse harm in connection with not being invited to the luncheon. Neither action, even if analyzed under the broader interpretation required for retaliation claims, is likely to deter a reasonable individual from engaging in protected EEO activity. Therefore, the Commission finds Complainant failed to state a claim as she did not assert she suffered harm to a term, condition, or privilege of employment so materially adverse that is reasonably likely to deter her or others from engaging in protected EEO activity.
Although Complainant stated the incidents caused her distress and adversely affected her health, they were not offensive, physically threatening, or humiliating, and did not unreasonably interfere with her work performance. We note that, although Complainant claims to have suffered damages as a result of the failure to invite her to the luncheon and receiving negative comments regarding customer service, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. U.S. Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agric., EEOC Appeal No. 01961499 (November. 3, 1997). Therefore, the Commission finds Complainant failed to state a claim of harassment that created a hostile work environment.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint for failure to state a claim is affirmed since Complainant failed to state a claim of discriminatory harassment that created a hostile work environment, and did not state she suffered harm to terms, conditions, or privileges of employment.2
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
June 20, 2013
Date
1 The record shows Complainant filed a prior EEO Complaint; pending under Agency Case Number 12-R9-FAS-DAL-13.
2 To the extent Complainant believes the two claims forming part of the instant complaint grew out of her prior EEO complaint, Agency Case Number 12-R9-FAS-DAL-13, Complainant may request an amendment to such prior complaint. See Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap V., Sec. 3B. (Nov. 9, 1999).
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0120131779
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131779