0120091446
08-03-2009
Jeroena E. Zevallos, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Jeroena E. Zevallos,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091446
Agency No. HS-08-TSA-007963
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated January 30, 2009, dismissing her formal 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.
On October 27, 2008, complainant, a Transportation Security Officer (TSO), filed the instant formal complaint. Therein, complainant alleged that she was discriminated against on the bases of race, national origin, sex, color, and in reprisal for prior EEO activity when:
1. in mid-February or March 2008, a Transportation Security Manager (TSM) tried to make her falsely claim that another TSO was harassing her;
2. in May 2008, she was called into the TSM's office to watch a video of the screening of a female passenger she had screened, who claimed that complainant had hurt her;
3. on June 29, 2008, the TSM said to her "shit happens" after being asked if she was still mad at him for an incident when the TSM tried to pressure her to complain about another employee;
4. on July 14, 2008, the Assistant Manager threatened her with Absent Without Leave (AWOL) if she had too many sick days;
5. on July 18 or 19, 2008, the TSM asked about her son, who also worked at the airport;
6. on July 18 or 19, 2008, the TSM asked her about her food in the lunchroom and another individual questioned the TSM's presence to which he responded "because there's no camera;"
7. on July 26, 2008, the TSM stopped by the baggage area and asked her "if she was enjoying her time there;"
8. on August 8, 2008, she was asked to attend a meeting to talk to the TSM;
9. during the first week of August, the TSM told her son "you don't know what your mother is up to;"
10. she did not receive her bidding schedule until September 6, 2008; and
11. on October 8, 2008, the TSM told her she was not dual-certified.1
In its January 30, 2009 final decision, the agency dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, in addressing these claims, the agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The agency improperly dismissed the formal complaint for failure to state a claim. We note that in her formal complaint, complainant stated that she was not given a schedule "in spite of my hardship letter with an attachment of FMLA which I turned in since Aug. 04, 2008. Instead they still asked for Doctor's note which I gave the next day and still not given a schedule. Schedule was given to me Sept. 06, 2008." We further note that according to complainant, she was hired as a TSO and passed the re-certification for the dual function; and received a 2007-2008 performance evaluation which stated that she was Dual Function. Complainant claimed however, that in October 2008, she was instructed to sign a paper "stating I'm just a Passenger Function as instructed by my Supervisor. I was not treated fairly and I worked for a year as Dual Function and was not properly informed about my status before hand." These matters state an actionable claim of harassment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, we REVERSE the agency's final decision dismissing complainant's complaint, defined herein as a harassment claim, and we REMAND this matter to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claim 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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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 3, 2009
__________________
Date
1 The record reflects that TSOs are dual-certified when they are trained to perform multiple functions such as behavioral detection and passenger and/or baggage screening.
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0120091446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091446