0120112040
02-03-2012
Hilary Burson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Hilary Burson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112040
Agency No. ARSIERRA10AUG04056
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 13, 2010, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Material Examiner and Identifier (MEI) at the Agency’s Sierra
Army Depot facility in Herlong, California.
On November 22, 2010, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(White), sex (female), and age (58) regarding the terms and conditions of
her employment. Specifically, Complainant indicated that the following
events occurred:
1. On August 12, 2010, Complainant had requested forklift training;
however, a Co-worker was scheduled for the training.
2. Complainant asserted that a Management Official (MO1) has not been
working her in the position she was hired. She was assigned work as
a Packer.
3. The Co-Worker was given a radio while Complainant was not despite
Complainant working with the Agency longer than the Co-Worker;
4. On July 21, 2010, another Management Official (MO2) threatened
to terminate Complainant if she contacted EEO or the union about her
complaints regarding the workplace.
5. In June 2010, Complainant indicated that an MEI employee was absent
for some time due to an illness. Complainant asserted that she could have
been assigned the MEI employees’ duties since she was hired as an MEI.
However, Complainant claimed that MO3 brought in another employee to
perform the MEI duties.
6. Complainant asserted that MO4 and MO5 did not offer her MEI duties
until she requested to meet with the Union regarding her assignment.
The Agency dismissed the complaint finding that Complainant failed
to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency
asserted that Complainant failed to show how the alleged events affected
the term, condition or privileges of employment.
Complainant appealed asserting that she was harmed but the alleged events.
Complainant claimed that she is not being assigned work in the position
for which she was hired. She indicated that she has been assigned
as a Packer rather than her MEI position. She also noted that she has
been denied training and other advancement. As such, she argued that
the Agency’s dismissal was not appropriate. The Agency argued that
Complainant failed to show that she was harmed by the alleged events.
Therefore, the Agency requested that the Commission affirm its decision
to dismiss the complaint.
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). Upon review, we find
that Complainant has stated a claim. Complainant has alleged that she
has not been assigned duties within her MEI position. In support of her
claim, Complainant indicated that the events listed as (2), (5) and (6)
occurred. Furthermore, Complainant asserted that she was denied forklift
training and a radio as indicated in events (1) and (3). Therefore,
we find that the Agency’s dismissal of this claim as demonstrated by
the events listed as (1), (2), (3), (5) and (6) was not appropriate.
We note that Complainant has also alleged that the MO2 threatened to
terminate her if she raised her claims with EEO as raised in event (4).
We find that Complainant has raised a claim of retaliation. Regarding
complainant's claim of reprisal, the Commission has stated that adverse
actions need not qualify as "ultimate employment actions" or materially
affect the terms and conditions of employment to constitute retaliation.
Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the
statutory retaliation clauses prohibit any adverse treatment that is based
upon a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity. Id. Therefore,
we find that Complainant has stated a claim of reprisal.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s dismissal and REMAND the matter in accordance with the
ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2012
__________________
Date
2
0120112040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112040