0120181326
05-11-2018
Erika H.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Erika H.,1
Complainant,
v.
R. Alexander Acosta,
Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120181326
Agency No. 1703111
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's January 19, 2018 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 was employed by the Agency as Assistant District Manager Secretary (Inspection), GS-07, for Coal District 5 in Norton, Virginia.
According to Complainant, in November 2016, Complainant and a group of her coworkers began wearing red shirts to the office every Friday, to show support for the troops. "RED" stood for "Remember Everyone Deployed." Based on the proximity to the 2016 presidential election, C1, the only African-American employee in the office, interpreted the red shirt Fridays as political intimidation. On election day, Complainant was wearing her American Flag pin and a sticker she received at the polls, which read "I Voted 2016 Presidential Election." Other coworkers also had "I voted" stickers, and general conversation in the office related to lines, traffic and wait times at the polls. Complainant alleges that C1 stormed into her office asking for her supervisor, the Assistant District Manager ("M1"). When Complainant explained M1 was not available, C1 allegedly cursed at her and went home early, allegedly intimidated by all the red shirts.
On January 20, 2017 (Inauguration Day), someone taped a printout of a Facebook post to C1's door, which read, "Do you think Trump will bring back slavery? I could use a maid." Complainant contends she had nothing to do with the January 20, 2017 incident. She was aware that C1 left early and was upset, but assumed it was because of everyone wearing red, as it was a Friday. M1 contacted Headquarters ("HQ") about the matter. At HQ's direction, M1 immediately began checking employee Facebook pages for the post that had been taped to C1's door. Complainant believes M1 accessed her Facebook page and "targeted" her for investigation because of her participation in RED Fridays even though she contends that she had nothing to do with the January 20, 2017 incident.
HQ notified the Department of Homeland Security, and the Office of the Inspector General ("OIG"), which initiated investigations to address: (a) the note placed on C1's door, (b) whether the wearing of red shirts in the office was a sign of support for the presidential candidacy of Donald Trump, and (c) circulation throughout the office of e-mails and Facebook posts regarding Donald Trump and his candidacy, including to people who did not wish to receive them. Complainant was among the employees questioned by HQ officials. She and at least one other coworker ("C2") were also contacted by an EEO Investigator, having been identified by C1 as "alleged harassers" in C1's EEO complaint concerning the January 20, 2017 incident. Meanwhile, the Union, of which C1 was a member, responded to the January 20, 2018 incident by initiating a grievance on behalf of all Bargaining Unit Eligible employees in District 5, including nonmembers such as Complainant. Union officials were unresponsive to Complainant's requests to be removed from the grievance. On or around June 7, Complainant complained to M1 that HQ Management and Union Officials were harassing her. Complainant initiated the instant complaint the following month.
On August 30, 2017, Complainant filed a formal complaint alleging discrimination and harassment by the Agency on the bases of race (Caucasian/white) and reprisal (engaging in protected EEO activity) when:
1. On November 8, 2016, she was labeled and targeted as a racist for wearing a red shirt, and verbally abused by a coworker ("C1").
2. On January 11, 12, and 17, 2017, she was emailed and questioned about a sign in her office that read "Proud to be Union Free."
3. Beginning January 20, 2017, and ongoing, she has been subjected to rumors, and harassing comments from coworkers, both in person and on social media, and involuntarily photographed when wearing her RED shirt, and labeled as a "racist" for wearing a red shirt.
4. On January 23, 2017, employees were informed that they could no longer wear red on Fridays.
5. On January 26, 2017, Management and Union Officials "placed a red flag over [Complainant's] name" targeting her for investigation, by outside agencies that came to investigate the January 20, 2017 incident.
6. On or around February 15, 2017, the Union included her name in a grievance it filed on behalf of District 5, regarding the January 20, 2017 incident, and when she told Union Officials she wanted "no part" of it, the Official tried to "bait" her into saying she had access to her manager's computer, her additional requests to be removed from the grievance were not answered, and despite her "participation" she was not included on any communications about the grievance.
7. On February 28, 2017, an EEO Investigator notified her and a co-worker ("C2") that C1 named them as "alleged harassers" in an EEO complaint about the January 20, 2017 incident, and asked them to respond to three questions. 2
8. On March 21, 2017 and June 27, 2017, during district-wide mandatory trainings on the Hatch Act, and Diversity and Inclusion, she was made to feel singled out, and humiliated, as her coworkers apparently blamed her for the trainings.
9. On June 26, 2017, her Manager ("M1") was instructed by the Acting District Manager ("DM") to request her statement about allegations she raised about Union and Management Officials harassing her, but when, at Complainant's request, M1 asked DM who was asking for Complainant's statement, DM would not answer, instead asking M1 if he felt Complainant had a "legitimate claim."
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that where, as here, 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. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Complainant alleges that C1 singled her out as an "alleged harasser" because of her race, causing her to become a "target" of both the EEO and the OIG investigations (Claims 5 and 7).3 However, investigative interviews alone usually do not sufficiently render an employee aggrieved unless they result in some concrete action. Keller v. United States Postal Serv., EEOC Request No. 01923077 (Aug. 26, 1992). Likewise, it is well established that a person's "status as the individual incorrectly accused of discrimination in another employee's EEO complaint," does not render them aggrieved "without more." See Chesney v. United States Postal Serv., EEOC Appeal No. 0120024401 (Oct. 27, 2003) citing Jarmin v. Dep't of the Navy, EEOC Request No. 05930019 (Dec. 23, 1993). There is no evidence that any further action (e.g. discipline or reassignment) was taken against Complainant as a result of the OIG investigation and being named an "alleged harasser" and questioned for C1's EEO complaint.
Further, we agree with the Agency's assessment that Claim 6 does not state a claim, as a claim that involves a challenge to another forum's proceeding is, for all effects and purposes, a collateral attack. Eng v. United States Postal Serv., EEOC No. 0120052627 (June 28, 2005). The Commission has held that an employee cannot use the EEO process to lodge a collateral attack on another proceeding, including matters related to the grievance process. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to challenge matters related to a Union grievance is through that process, or through the National Labor Relations Board ("NLRB").
As for Complainant's harassment allegations, we have repeatedly found that allegations of isolated incidents of harassment, including verbal attacks, usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) see also Banks v. Dep't of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). The alleged harassing conduct inflicted on Complainant by C1 and other coworkers is not sufficiently severe or pervasive to state a claim of harassment. Claims 1 and 8, describe several isolated incidents of alleged verbal coworker harassment that occurred months apart. Claims 3 and 4, while describing more pervasive "ongoing" instances of coworker harassment, do not rise to the level of severity necessary for a viable claim of harassment. As the Agency aptly pointed out, and previously stated, the Commission does not consider being identified in an EEO Complaint as an "alleged harasser" sufficient to state a claim.
Finally, although Complainant claims to have suffered damages as a result of the incident at issue, 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. See Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996), Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
May 11, 2018
__________________
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 C2 also filed an EEO Complaint on the matter docketed as EEOC Appeal No. 0120181196.
3 We note that much of Complainant's argument emphasizes alleged abuse of power by Union officials and her openly "union free" stance as a reason she was "targeted" for harassment. For instance, M1 states in the record that the Local Union Vice President identified Complainant as responsible for the January 20, 2017 incident, and Complainant names the Union Steward as her "alleged harasser." Political beliefs and union membership status are not "protected classes" in any of the anti-discrimination statutes we enforce. See 29 C.F.R. � 1614.106, supra., see also Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120142257 (Nov. 7, 2014) (finding the complaint properly dismissed because it concerned union matters, and the complainant's allegation that the Agency failed to act in response to her grievance should be raised with the Federal Labor Relations Authority, and the relief she was seeking, removal of union officials and actions to enforce accountability of the union confirmed that her claim was against the union).
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