0120181196
05-11-2018
Eryn M.,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
Eryn M.,1
Complainant,
v.
R. Alexander Acosta,
Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120181196
Agency No. 1803001
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 a Mine Safety and Health Assistant, GS-06, for MSHA 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, sometimes accompanied by patriotic, American flag-themed accessories. As stated on some of the shirts, "RED" stood for "Remember Everyone Deployed." Complainant, a veteran with a son serving in the Army overseas, contends that RED Fridays were not a political statement. However, C1, the only African-American employee in the office, found it discomforting and given the proximity to the 2016 presidential election, interpreted the red shirt Fridays as political intimidation. On Election Day, November 8, 2016, multiple employees wore red, along with "I voted" stickers. C2 recounted an outburst by C1 concerning the red shirts, and that C1 left early because she felt "threatened." According to Complainant, who arrived after C1 left, some employees stopped speaking to C1 after the incident, and Complainant "made a personal choice to have no interaction with her in fear of her past actions at our workplace."
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." C1 reportedly left the office in tears. The office was directed not to wear red on Fridays anymore, and Complainant was asked to remove the RED shirt she had draped over her chair, which she did. The Assistant District Manager ("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, including Complainant's page, causing her to feel personally "targeted," as Complainant contends 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 an investigation 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 investigators. 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.
On October 6, 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 as a racist for wearing a red shirt.
2. On November 9, 2017, a coworker ("C1") approached her in a "hostile, threatening way."
3. On January 20, 2017, and ongoing through the date of filing this complaint, she has been subjected to innuendos, rumors, and jokes by coworkers, in person and on social media, about her being a "racist."
4. On January 23, 2017, an office-wide email instructed employees not to wear red on Fridays anymore, and Complainant was asked to remove a red shirt she had draped over her chair.
5. On January 26, 2017, Management and Union Officials targeted Complainant her for investigation by outside agencies that came to investigate the January 20, 2017 incident.
6. On or around February 15, 2017, she learned that the Union filed a grievance on behalf of all Bargaining Unit Eligible ("BUE") District 5, regarding the January 20, 2017 incident. Although her requests not to be included in the grievance were denied she was not included on emails related to 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 7, 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 6, 2017, she was asked additional questions by a different EEO Counselor assigned to C1's complaint, which C2 was not also asked.
10. On multiple unspecified dates, when she was assigned to work the switchboard, C1 intimidated her by calling and requesting to be transferred even though C1 could have dialed the person she wished to contact directly.
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 a 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, 7 and 9).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 to be adjudicated within the EEO process. 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 (Claim 6). 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.
To the extent Complainant alleges a hostile work environment, we find that the events described in Complainant's remaining claims, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep't of the Treasury, Request No. 05970077 (Mar. 13, 1997). We have repeatedly found that allegations of a few 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).
Claims 1, 2 and 8, including C1's actions on November 8 and 9, 2016, and two training sessions are "isolated incidents" that occurred on specific days, sometimes months apart. Claims 3, 4 and 10 allege more pervasive "ongoing" instances of alleged harassment, including the temporary ban on RED shirt Fridays, coworkers "jokingly" implying Complainant is racist, and C1 inconveniencing Complainant by calling her at the switchboard and asking to be transferred. However, these actions are simply not severe enough to state a claim of harassment. As previously discussed, the Commission does not consider being identified in an EEO complaint sufficient to state a claim, therefore, these allegations do not meet the requisite level severity, on their own, to give rise to a claim of harassment.
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. 0120181326.
3 Complainant also repeatedly attributes being "targeted" to her veteran status, nonparticipation in the Union, and her political beliefs. We have not considered these additional bases in the Analysis because they are not identified as "protected classes" in any of the anti-discrimination statutes we enforce. See 29 C.F.R. � 1614.106, supra.
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