0120090950
06-03-2009
Deborah Michael, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Deborah Michael,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090950
Agency No. AREUHEID08SEP03590
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated November 13, 2008, 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. In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (African American) and sex (female)
when her former supervisor took the following actions:
1. a few months after complainant was hired on August 6, 2007 into the
Budget Execution Branch, she started talking to complainant in negative
and harsh tones;
2. within 60 days of complainant's hiring, she was assigned as a back-up
analyst for four different accounts when others were not assigned back
up duties until a year after their arrival;
3. during October 2007, complainant suggested cross training for everyone
in her section and it never occurred;
4. in January 2008, complainant was denied training she requested; on
another occasion in January 2008 she was told she could go to different
training if she took an alternative work schedule while attending the
four days of training that ran from 3:45 PM to midnight (except the last
day which ended at 7 PM), something not required of others;
5. during March 2008, complainant changed the date of previously approved
leave to attend her graduation in May 2008 to take emergency leave,
and the supervisor would not let her take the May 2008 dates off unless
she found back up;
6. in April 2008, she rolled her eyes and seemed disgusted when
complainant asked a question about her accounts;
7. in April 2008, she did not act in a way that showed any concern
after complainant sent an email that she was uncomfortable working in
the section;
8. in July 2008 and other times, she answered complainant's questions
with insufficient detail, but answered the questions of others in detail;
9. on July 28, 2008, she issued complainant a notice of termination
during her probationary period, effective August 2, 2008, which she
rescinded on August 1, 2008;
10. Twice during August and September 2008, after complainant was
reassigned to a different work area, complainant walked into the budget
execution area once to get her computer name and other time to assist
a former colleague; the first time the former supervisor asked in harsh
tones why she was there, and the second time used harsh tones when she
saw complainant.1
The FAD dismissed claims 1 through 7 for failure to timely initiate EEO
counseling. It reasoned that complainant did not initiate EEO counseling
until August 18, 2008, beyond the 45 calendar day time limit to do so.
29 C.F.R. � 1614.105(a)(1) and 107(a)(2). It dismissed claim 9 for
being moot. 29 C.F.R. � 1614.107(a)(5). It dismissed claims 8 and 10
for failure to state a claim, reasoning that complainant was not harmed or
aggrieved. The FAD also found that the complaint, taken as a whole, did
not state a claim of discriminatory harassment because the events were not
sufficiently severe or pervasive to create a hostile work environment.
On appeal, complainant argues that claim 9 is not moot because she is
entitled to compensatory damages and the former supervisor continued
to harass her when she occasionally visited her former work area.
Complainant argues that her entire complainant states a claim of
harassment, and since claims 8 through 10 occurred within the 45 day time
limit to initiate EEO counseling, the entire complaint states a claim
and is timely. In opposition to the appeal, the agency supports the FAD.
The former supervisor told the EEO counselor that she hired complainant
after an interview. Complainant told the EEO counselor that she worked
in the budget field for 24 years, but her new position was the first
time she worked with engineer accounts. She told the EEO counselor that
the supervisor would make comments like "you should know this already."
The notice of termination recited performance problems, and concluded
that complainant lacked attention to detail and was unable to perform her
duties at her level. According to the counselor's report, the Chief of
Staff advised that the notice of termination be rescinded because there
did not appear to be documentation in the file of poor performance nor
counseling statements.
In explaining claim 1, complainant wrote that at a meeting, the supervisor
said in a harsh tone to complainant "say something," even though it
did not pertain to her. Complainant wrote that the supervisor started
talking to her in a nasty tone at weekly meetings, so she stopped making
comments to avoid the harshness.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings 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 the 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.
Complainant's claim of harassment largely revolves around the supervisor
being impatient with her over performance expectations. This manifested
itself in the supervisor assigning complainant more responsibility earlier
than she thought appropriate and being short with her. Complainant does
not contend that the supervisor was short with her everyday or even
every week. While interactions revolving around work expectations were
unpleasant, we do not find them sufficiently severe and pervasive to
rise to the level of a hostile working environment.
We find that the notice of termination claim should be dismissed
for failure to state a claim because it was rescinded before it was
effective and prior to the filing of the formal complaint. 29 C.F.R. �
1614.107(a)(1). See Stevenson v. United States Postal Service, EEOC
Appeal No. 01A52057 (April 27, 2005) (affirmed dismissal for failure to
state a claim of a complaint alleging discriminatory seven day suspension
where via a grievance settlement, the suspension was rescinded prior
to the filing of the formal complaint); Sowell v. United States Postal
Service, EEOC Appeal No. 01A45473 (November 24, 2004) (affirmed dismissal
for failure to state a claim of a complaint alleging discriminatory notice
of medical separation where via a grievance settlement, the notice was
rescinded prior to the filing of the formal complaint).
The FAD's dismissal of the claims about training and leave, claims 3, 4
and 5, were properly dismissed for failure to timely initiate EEO contact.
Complainant contacted an EEO counselor well after the 45 calendar day
time limit on these matters.
The Commission has a policy of considering reprisal claims with
a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment. Rather,
a complainant is protected from any discrimination that is reasonably
likely to deter protected activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll,
supra. As previously found, the complaint fails to state a claim of
harassment. In addition, we find that claim 10 would not reasonably
deter protected activity. When claim 10 occurred, complainant no longer
reported to the supervisor.
Accordingly, the complaint is dismissed for, as applicable, for failure
to state a claim and failure to timely initiate EEO counseling. The FAD's
dismissal is affirmed.
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 (S0408)
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 (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
June 3, 2009
__________________
Date
1 On appeal, complainant added the basis of reprisal for prior EEO
activity to claim 10.
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2
0120090950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090950