0120161787
08-25-2016
Fredda J.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fredda J.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120161787
Agency No. BOP201502020
DECISION
Complainant timely appealed to this Commission from the Agency's April 6, 2016, dismissal of her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a EEO Counselor (GS-13) in the EEO Office at the Agency's Federal Detention Center in Houston, Texas.
On October 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal (prior EEO activity) when:
1. On June 2, 2015, Complainant was conducting a phone interview with the Reasonable Accommodation Coordinator/Special Assistant to the General Counsel ("C1"), regarding a request for EEO Counseling where C1 was listed as the Responsible Management Official; and C1, using a combative tone, commented about Complainant's past role as an EEO Representative, stated that Complainant should have known she would not consent to an interview, and requested that Complainant submit all further inquiries in writing;
2. On June 23, 2015, the EEO Officer/Senior Dispute Resolution Specialist who was Complainant's second level supervisor ("S2"), required Complainant, in her role as an EEO Counselor, to go through her first level supervisor ("S1") via conference call in order to obtain documents from or to speak with C1;
3. On June 25, 2015, both S2 and Complainant's third level supervisor ("S3"), the EEO Director, once again required Complainant, in her role as an EEO Counselor, to go through S1 via conference call in order to obtain documents from or to speak with C1 regarding all future inquiries; and with regard to the assignment naming C1 as an RMO, from which this matter arose, S2 and S3 required Complainant to contact C1's coworker, the Deputy General Counsel ("DGC") to obtain the necessary information from C1; and
4. Because of the foregoing, S2 and S3 thereby failed to ensure that C1 cooperated with the EEO inquiry Complainant was conducting.
Before she became an EEO Counselor, Complainant worked for the Agency as an accountant and served as Regional and Local Fair Practice Coordinator for the local union. In this capacity, she repeatedly engaged in protected EEO activity by representing union member employees throughout EEO processes. On May 3, 2011 Complainant emailed C1, copying the Attorney General's Office among others. The email accused C1 of providing Agency management with erroneous information about reassignment as an option for a reasonable accommodation for an employee with a disability. Complainant's tone was adversarial, and she questioned C1's EEO knowledge and competency as Accommodation Coordinator.
Complainant and C1 did not communicate again until June 2, 2015, when Complainant, who had since become an EEO Counselor, was assigned a request for counseling that named C1 as a Responsible Management Official ("RMO"). Complainant alleges that when she called about the inquiry (which also involved reassignment as a reasonable accommodation); C1's tone was "combative." C1 questioned Complainant's neutrality, referencing her prior EEO activity as an EEO Representative, and then told Complainant to submit all of her questions in writing. Complainant responded that she knew C1 did not require any of the other EEO Counselors to submit their questions in writing and accused C1 of retaliating against her for her prior EEO activity. Complainant and C1 briefed their respective supervisors on the phone call, described in the record as "problematic" and "unpleasant;" and have not spoken to each other since.
Both S1 and S2 promptly responded to Complainant's emails alleging C1's retaliatory response to her inquiry, and S2 mentioned that other EEO Counselors had reported C1 was difficult to work with as well. At S2's direction, S1 attempted to speak with C1 to ensure she had all the facts about the encounter. However, DGC responded instead, instructing S1 that any future EEO information requests to C1 would go through him. Thus Complainant, S1, and DGC met via conference call so that Complainant could complete her inquiry. DGC promptly obtained and submitted C1's answers to S1, who forwarded them to Complainant, and she completed the assignment. As they were outside of C1's chain of command, S1, S2, and S3 met with C1's supervisor, GC, to strategize on preventing additional harassment allegations. They determined that going forward, S1 and the other supervisor for the EEO Counselors would be the points of contact for DGC regarding EEO inquiries for C1. S2 submitted a directive to all EEO Counselors that all information and document requests for C1 must be submitted via an EEO Supervisor. Complainant strongly objected, arguing that this solution still constituted retaliation because it created a barrier to her ability to do her job.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that when 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).
For claims of retaliation, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment. See Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." See Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
Claim 1
This Commission has consistently held that a stray remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved. See Henry v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). We agree with the Agency's finding that the alleged discriminatory act in Claim 1, C1's reference to Complainant's prior EEO activity and request that Complainant submit all questions in writing, amounted to an isolated stray remark. The Agency noted that the alleged harasser, C1, lacked supervisory authority over Complainant, and was not in a position to cause a concrete action impacting Complainant's employment. We find C1's alleged discriminatory action in Claim 1 insufficient to render Complainant aggrieved, and unlikely to deter others from engaging in protected activity. Likewise, C1's comments were not so severe or pervasive to alter the conditions of the complainant's employment.
On appeal, Complainant argues that Claim 1 should be considered together with Claims 2, 3, and 4 because S1 and S2 are liable for C1's alleged harassment in Claim 1 because as Complainant's supervisors, they did "nothing" after they learned about it. An employer is liable for hostile work environment harassment by employees who are not supervisors if the employer was "negligent in failing to prevent harassment from taking place." See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). Our guidance provides that remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. We find no indication in the record that S1 and S2 are liable for coworker harassment, as they acted promptly and effectively in accordance with our guidance. Complainant acknowledges that she has not communicated with her alleged harasser since informing S1 about the incident and S2 took remedial measures to ensure that the alleged discrimination is unlikely to recur. We emphasize to Complainant that these remedial measures need not be those that the employee requests or prefers, as long as they are effective.
Claims 2, 3, and 4
On appeal, Complainant also argues that she is an "aggrieved employee," because S2 restricted Complainant's ability to fulfill her duties as an EEO Counselor, namely "to conduct constructive interviews" as she investigates claims. However, Complainant does not dispute that she was able to complete her precomplaint inquiry of C1 with the information she obtained by coordinating with S1 and DGC. There is no evidence of undue delay, nor is there any indication that Complainant's record was negatively impacted. In addition, we find the alleged impact on Complainant's ability to perform her duties as an EEO Counselor to be minimal. C1 is the only individual this restriction applies to. Complainant states in her appeal that in her "five years of being an EEO Counselor she was never previously required to submit her questions in writing through her supervisor." Both Complainant and C1 state in the record that prior to the June 2015 phone call, the last time they communicated was in April 2011, before Complainant became an EEO Counselor. Even in the context of a reprisal claim, the requirement that Complainant coordinate with S1 when she needs to request information from an individual she communicates with an average of once every five years, fails to render Complainant an "aggrieved employee." We also find such a restriction, which has effectively prevented further alleged harassment by C1, unlikely to deter others from engaging in EEO Activity. Moreover, considering all four claims, keeping in mind our broad coverage of retaliation, the alleged actions of C1, S1, and S2 are not severe and pervasive enough to constitute harassment. In light of this finding, we decline to address Complainant's remaining arguments on this matter.
Dissatisfaction with Complaint Processing
When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015)
Complainant, after pursuing this matter with the proper Agency official in accordance with our regulations, submits multiple allegations of dissatisfaction with the Agency's handling of her complaint. Specifically, she alleges that the Agency deliberately delayed processing her complaint, first by issuing her Report of Investigation two weeks after deadline even though the document date indicated it had been completed 40 days earlier, and by issuing its Final Decision two days after the maximum 180 day limitation period. With respect to the second delay, Complainant exercised her option to submit her complaint for a hearing by an Administrative Judge ("AJ"). The Agency contacted the AJ without copying Complainant, an improper ex parte communication, and informed the AJ that it had already drafted a Final Decision on the matter, causing Complainant's hearing request to be declined. Complainant further alleges that the signature on the Final Decision, indicated a conflict of interest.
After thorough review, we decline to exercise our discretion to sanction the Agency.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
August 25, 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.
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