0120112252
08-25-2011
Janis K. Waters, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Janis K. Waters,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120112252
Agency No. 201123705FAA03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 16, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Air Traffic Control Support Specialist at the Agency’s Miami Air
Route Traffic Control Center in Miami, Florida.
On January 24, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination and a hostile work
environment on the basis of race (Caucasian), sex, and reprisal when:
1. On October 20, 2010, the day she returned to work following the Merit
System Protection Board’s (MSPB) decision reversing the Agency’s
prior removal action against her, the Manager stated that there would
be no need for there to be any changes in her line of supervision,
and that they were “starting on a new slate,” which caused her to
become apprehensive and concerned due to the prior alleged hostile work
environment to which she was allegedly subjected.
2. On October 20, 2010, she was assigned to the Training Department,
despite her request to be assigned to the Safety Office.
3. On October 20, 2010, she was assigned to a cubicle in close proximity
to a female co-worker that was named in her prior EEO complaint as an
alleged harasser although she expressed her concern to management about
working with and having to speak to this person.
4. On October 21, 2010, the manager called her into a meeting without
offering her union representation and berated her, stating that he was
hearing information about how she would not work with certain people
and asked her if she had a problem. When she told him about her prior
complaint of hostile work environment, he stated that he had no knowledge
of the complaint and was concerned only about any problems that occurred
in the past day and a half, since she had returned to duty status.
As a result of this conversation, Complainant experienced a panic attack.
5. For the next couple of weeks, she was assigned only a few tasks out
of the Safety Office, which was her original work preference.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. The instant appeal
followed.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that the instant complaint
deals primarily with Complainant’s return to work following a
decision by the MSPB. In that decision, the MSPB found that the Agency
improperly subjected Complainant to drug testing procedures, which were
not required by her position, and ordered her reinstatement. Complainant
raised claims of discrimination, but the MSPB found that she did not
prove her claims. To the extent that Complainant may be alleging that
the Agency was not complying with the MSPB’s decision that required
that she be properly placed her back into her position, she must raise
those claims with the MSPB, not the Commission.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where, as is the case here, a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Applying the above case law, we find that
Complainant does not claim harassment that is sufficiently severe or
pervasive to alter the conditions of her employment.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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 (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 (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
August 25, 2011
__________________
Date
2
0120112252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112252