0120142636
02-16-2016
Elayne C.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elayne C.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120142636
Agency No. NRCS201400021
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated June 23, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Coordinator at the Agency's State Office facility in St Paul, Minnesota.
On April 9, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of national origin (Hispanic), sex (female), and/or reprisal for prior protected EEO activity. In support of her claim, Complainant alleged the following:
1. Between September 9, 2013 and September 18, 2013, the Budget Officer (BO)2 refused to authorize funding for Complainant's approved training requests.
2. On December 2, 2013, BO "interrogated" a management official about his participation as Complainant's representative in an upcoming Alternative Dispute Resolution (ADR) meeting on Complainant's concerns.
3. On February 12, 2014, BO failed to address an action item even though she had received an electronic mail notification.
4. On March 2 4, 2014, BO complained to the State Administrative Officer that she had ongoing concerns with Complainant's entry of checks into the check registry.
The Agency dismissed the complaint for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we find that a fair reading of the complaint indicates that Complainant's claim is that she was subjected to ongoing discriminatory harassment sufficient to create a hostile work environment. In support of this claim, Complainant offered four alleged incidents of discriminatory/retaliatory harassment.
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. Thus, not all claims of harassment are actionable. Here, four incidents have been proffered by Complainant as the factual basis of her claim of ongoing discriminatory harassment. Following a review of the record, we find that the Agency correctly dismissed the complaint. Considering allegations 1-4 together and in the light most favorable to Complainant, we concur with the Agency that that such actions were neither sufficiently severe nor pervasive enough to state a viable hostile work environment claim. It appears that none of these actions resulted in a present harm or loss to Complainant. We also find Complainant has not stated a claim of reprisal as none of the alleged actions is reasonably likely to deter Complainant or others from engaging in protected EEO activity. EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant asserted that the Budget Officer had been a named as a responsible management official in her prior EEO complaint. Complainant concedes the training was eventually approved.
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