0120161320
04-28-2016
Eleni M.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eleni M.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120161320
Agency No. AREUBENEL15BIV04555
DECISION
Complainant timely appealed to this Commission from the Agency's December 28, 2015 dismissal of 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 Assistant (NF-0303-02) for Child, Youth and School Services in the Shape Child Development Center ("CDC") at the U.S. Army Garrison Benelux in Shape, Belgium.
On December 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Native American/Hispanic), national origin (Peru), color (Brown), and reprisal for prior protected EEO activity (Agency Nos. AREUBENEL09JUN02339 and AREUBENEL11MAY02183, resolved via settlement agreements in 2010 and 2011) when:
1. on November 12, 2015, the CDC Administrative Assistant changed Complainant's daughter's allergy card and refused to tell her who ordered her to make the change;
2. the week of October 13, 2015, the CDC Assistant Director ("AD") violated her daughter's medical privacy when calling one of the doctors for her daughter;
3. on October 15, 2015, the CDC Facility Director ("FD") caused the food poisoning of Complainant's daughter;
4. on March 30, 2015, FD reassigned Complainant's work schedule to another employee, which interfered with Complainant's set breastfeeding schedule;
5. on September 27, 2012, FD directed Complainant to sign a letter of Reprimand for dialing an incorrect number in her efforts to locate the parents of another child; and
6. on December 7, 2011, FD issued Complainant a Warning for mixing up dollars and euros in the cash register.
In 2011, in accordance with a settlement agreement resolving one of Complainant's prior EEO complaints, the Agency transferred Complainant to her current administrative role within the CDC. From the beginning, she alleges she felt harassed and discriminated against by her CDC supervisor, FD, who she alleges, is "best friends" with the individual named as the alleged harasser in Complainant's prior EEO complaint. Complainant cites the December 7, 2011 Warning and the September 27, 2012 Reprimand in her complaint as examples of FD's disparate treatment of her as compared to the employees FD considers "friends."
On March 30, 3015, Complainant alleges FD further discriminated against her by giving Complainant's schedule to a new hire despite Complainant's seniority. Complainant was given a later schedule, which was disruptive to both Complainant and her family's daily routine, required her to use up more leave hours, and impacted child care, as Complainant was still breastfeeding her daughter. In response to Complainant's concerns, FD allegedly told Complainant to "buy a pump."
On October 15, 2015, Complainant alleges that AD and FD deliberately caused her daughter, who was enrolled in daycare at CDC, to suffer food poisoning by changing her CDC allergy record from "no canned fruits" to "no canned peaches." As a result, Complainant's daughter was mistakenly fed canned fruit, causing a severe allergic reaction. Complainant previously ensured that AD and FD were informed via email and verbally of her daughter's allergy, and alleges that the other CDC employees who would potentially prepare her daughter's food at CDC were made aware of her allergy to all canned fruit. The record reveals that on October 26, 2015, the Commander and Director of the Agency's Family, Morale and Recreation office informed Complainant and her husband that an investigation was currently in progress to determine what administrative or procedural error.
Complainant and her husband, concerned with the investigation's slow pace and the focus on administrative error rather than an intentional act, reported the incident to the Belgian Police on October 16, 2015, and filed this complaint of employment discrimination.
The Agency dismissed Claims 1, 2, and 3 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1); and dismissed Claims 4, 5, and 6 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact.2
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1, 2 and 3
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in her capacity as an employee or applicant for employment. 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. See 29 C.F.R. �1614.107(a)(1), 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't 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 Taylor v. United States Postal Serv., EEOC Appeal No. 0120060151 (June 6, 2007)
We agree with the Agency's finding that Claims 1, 2, and 3 failed to establish Complainant was an "aggrieved employee." Even considering the claims with a broad view of coverage, Complainant fails to meet the preliminary standing requirements under 29 C.F.R. �1614.103. All three allegations concern the treatment of Complainant's daughter particularly with regard to feeding. However, the alleged discriminatory practices, here the mechanism to ensure Complainant's daughter is not fed food she is allergic to while attending day care at CDC, does not affect Complainant in her capacity as a CDC employee, but rather as a CDC customer. Therefore, the Agency correctly determined that Complainant does not have standing to raise these claims in the EEO complaint process because she is not an aggrieved employee with regard to these matters.
Claims 4, 5, and 6
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The alleged discriminatory acts in Claims 4, 5, and 6 took place on December 7, 2011, September 27, 2012, and March 30, 2015 respectively. Complainant did not initiate contact with an EEO Counselor until November 30, 2015, which is beyond the forty-five (45) day limitation period for these claims.
Complainant appears to argue that despite her prior EEO activity she did not know about the 45 day limitation period, stating she "relied every time on the EEO office's expertise for accuracy and proper filing." The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011) Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990) We find the Agency properly imputed knowledge of the EEO complaint process to Complainant.
Complainant also argues that her EEO counselor "did not provide her with an opportunity to prove [timely] initial EEO contact." Given the opportunity on appeal, Complainant provided no evidence to support an earlier initial EEO contact date or that the EEO counselor misled her about the time requirements. We note that it is always the complainant's responsibility to advance an EEO complaint. See 29 C.F.R. �1614.605(e).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
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
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
April 28, 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 responded to the Agency's final decision via email exchanges with the Agency's Regional EEO Director on January 15, 16, and 19, 2016. Complainant appears to argue that the dismissal was entirely on timeliness grounds. Our reading of the Agency's decision provides that only Claims 4, 5, and 6 were dismissed as untimely. Therefore, we will not address Complainant's arguments concerning the timeliness of Claims 1, 2, and 3.
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