0120120011
01-15-2013
Ednora Armour-Ohanmu, Complainant, v. Leon E. Panetta, Secretary, Department of Defense, Agency.
Ednora Armour-Ohanmu,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120120011
Hearing No. 570-2009-00449X
Agency No. 2008-BTA-046
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 25, 2011, 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. 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 Senior Budget Analyst at the Agency's work facility in Arlington, VA. On September 16, 2008, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race (African-American), color (Black), age (60), and reprisal for prior protected EEO activity when:
1) On June 6, 2008, she received a "read only" message on a directorate spreadsheet;
2) On June 4, 2008, a contract employee asked for the updated spreadsheet of two directorates for discussion in a meeting with her former supervisor the Business Transformation Agency (BTA) Comptroller. Complainant believes that she should have been meeting with her former supervisor regarding these spreadsheets;
3) On May 22, 2008, an employee asked if Complainant had completed an amendment to a contract and asked for a copy. Complainant obtained the information and advised the employee that she would be completing it and that the employee could obtain a copy of it on the shared drive;
4) On unspecified dates, her [former] supervisor, kept her "out of the loop" on financially-related issues and e-mail correspondence; and
5) Her former supervisor failed to give her a midyear performance rating in March of 2008.
On November 24, 2008, Complainant moved to consolidate this complaint with a separate EEO complaint that was pending before an EEOC AJ. The Agency opposed the motion on December 2, 2008 because the matters were not like or related to the subject complaint. On March 17, 2009, Complainant requested a hearing regarding the subject complaint. On October 6, 2010, the Agency dismissed the subject complaint and Complainant appealed the Agency's decision to OFO. On May 3, 2011, OFO issued its decision in EEOC Appeal No. 0120110704 finding that the Agency improperly dismissed the complaint because Complainant had requested an administrative hearing and the case was already pending before an EEOC AJ. Therefore, the Commission vacated the Agency's dismissal and remanded the complaint for processing.
On July 29, 2011, the AJ denied Complainant's motion to consolidate this case and dismissed the matter. The AJ remanded the case to the Agency for further processing which included an investigation and rights to a final agency decision (FAD) or a hearing. Subsequently, the Agency issued a FAD which found that after reviewing the incidents in the light most favorable to the Complainant, her complaint failed to state a claim. After considering the totality of the circumstances, including the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or a mere utterance, and whether it unreasonably interfered with her work performance, the Agency found that the incidents Complainant raised were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); also see Fazio v. United States Postal Service, EEOC Appeal No. 01983839 (July 20, 1999); Torres v. Department of Veterans Affairs, EEOC Appeal No. 0120061190. The Agency noted that the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05940481 (February 16. 1995).
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission carefully review the information contained in her appeal. She maintains that she was told via email by EEO personnel in her office that these claims should be consolidated with her case that was currently before an AJ because they were like and related. Further Complainant requests that the Commission overturn the AJ's final order of dismissal, and the Agency's FAD which dismissed her complaint. Complainant asks for a hearing regarding the merits of her case.
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that it was within the AJ's discretion to not consolidate this case with Complainant's case that was already pending before him. The AJ found that the allegations in the instant case were not like or related to the claims before him. The AJ determined that the instant case concerned allegations of harassment regarding conduct that occurred between March and June 2008, while the case pending before him involved three discrete employment actions.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999).
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 that can be challenged are not restricted to those which affect a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected EEO activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Upon review, we find that the actions complained of, assuming that they are true, are neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. We further find that the alleged activity was not reasonably likely to deter protected EEO activity.
Finally, to the extent that one could argue that allegations 4 and 5 are adverse employment actions in addition to alleged harassing conduct, we note that while mentioning her supervisor's involvement, Complainant failed to note any adverse employment action that was taken or which harmed her; therefore, we do not find that she was aggrieved.
CONCLUSION
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
___1/15/13_______________
Date
2
0120120011
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120011