0120151322
03-31-2016
Hulda P.,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
Hulda P.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120151322
Agency No. ARMEPCOM14JUN02545
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 14, 2014, 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 an Education Service Specialist at the Agency's Military Entrance Processing Station facility in Amarillo, Texas. On September 23, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (43) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On April 1, 2014, Complainant's supervisor (S1) publicly berated Complainant, approached Complainant as if to strike her, expressed rage and made threatening gestures in a loud voice and pointed her finger at Complainant's head;
2. On April 2, 2014 Complainant reported S1's actions to a higher level manager (S2) who took no action;
3. On April 25, 2014, Complainant received midpoint counseling from S1 that did not accurately capture/reflect Complainant's accomplishments and professional interactions, S1 directed Complainant to falsify her evaluation form, and refused to contact a Supervisory Human Resources Specialist for clarification regarding Complainant's evaluation;
4. On May 25, 2014 Complainant received her Mid-term evaluation, which did not reflect Complainant's accomplishments or outstanding achievements, but was derogatory and slanderous;
5. On May 27, 2014, Complainant learned that someone had entered false information onto her timecard regarding "night differential" in an effort to get Complainant fired for falsifying a government record;
6. On June 25, 2014, S1 emailed Complainant and insisted that she sign her evaluation form;
7. On July 28, 2014, Complainant learned that her probation period had been extended from one year to two years;
8. On August 8, 2014, Complainant was informed that she was being investigated for time and attendance improprieties from February to May 2014 by an Agency Investigating Officer;
9. On August 11, 2014, Complainant was told by S1 that a previously-approved temporary duty assignment was no longer approved;
10. On August 18-19, 2014, S2 refused to recertify Complainant's time cards to reflect the removal of the "night differential" entries;
11. Since August 25-27, 2014, Complainant is now required to give a schedule two weeks in advance with locations of the schools to visit, contact person with each school, and the actual time that Complainant will be at each school; and
12. On September 11, 2014, Complainant received another written counseling from S1.
The Agency did not include all of the above claims in its Dismissal, omitting claims 4, 5, 7, 9, 10, 11, and 12. The Dismissal further included an additional claim characterized as follows "On April 1, 2014 [S2] directed either the Secretary (name omitted) or Supply Technician (name omitted) to set in on meetings with [Complainant] and S1." We note however that while Complainant raised this claim in her informal complaint, she did not raise it in her Formal complaint and hence we consider that Complainant abandoned the matter and decline to include it in this Decision. As regards the remaining claims, the Agency found that they should be dismissed because Complainant indicated a desire to pursue her claims in Federal District Court. In addition, the Agency found that claim 8 should be dismissed because Complainant could not establish that she engaged in prior protected activity.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614 107(a)(3) provides that an agency shall dismiss a complaint that is the basis of a pending civil action in a United States District Court, or that was the basis of a civil action decided by a United States District Court in which the complainant was a party. The Agency dismissed the complaint after receiving correspondence from Complainant indicating her intent to file in District Court. We note, however, that the record does not contain any evidence that Complainant did in fact file a civil action in District Court, nor the nature of any such claims filed. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Absent any evidence that Complainant has in fact filed in District Court, and that the claims filed are the same as the claims raised herein, we find that dismissal on such grounds is improper and we remand the claims to the Agency for further processing.
With regard to claim 8, we note that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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). With regard to claims of reprisal, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
The Agency found that Complainant failed to state a claim of reprisal with regard to claim 8 but the Agency's argument is unclear. The Dismissal states that the investigation referenced in claim 8 "began on June 19, 2014. However [Complainant's] initial contact with an EEO official was not until July 10, 2014, which was 21 calendar days prior to [Complainant] entering the EEO process." We interpret the Agency's argument to be that the investigation predated Complainant's EEO activity and hence could not have been due to reprisal. We find, however, that such an argument addresses the merits of the claim without a proper investigation as required by the regulations. Whether or not Complainant engaged in activity protected under the anti-discrimination laws prior to any adverse Agency action is irrelevant to the procedural issue of whether she has stated a viable claim under the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). We further note that the Agency found that Complainant incurred no harm from the Agency's action, but such an analysis is inapplicable to claims alleging retaliation, as noted above. Complainant has alleged adverse treatment allegedly based on a retaliatory motive and that treatment is reasonably likely to deter Complainant or others from engaging in protected EEO activity. That is sufficient to state a claim of retaliation. During the investigation, however, Complainant will have to provide evidence that she engaged in prior protected activity by showing she participated in the EEO complaint process or that she opposed an alleged discriminatory practice prior to any of the actions she claims to be retaliatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the final order and REMAND the claims for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29. C.F.R. � 1614.108 et seq. 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 (M0815)
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 (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 (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
March 31, 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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