0120160333
04-06-2016
Jessenia S.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jessenia S.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160333
Agency No. 156016902248
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated September 22, 2015, 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 Family Caseworker at the Agency's facility in Beaufort, South Carolina.
On August 24, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for her prior informal EEO matter that was settled on May 20, 2015,2 when:
1. On May 21, 2015, she received a punitive verbal counseling by the Director of Marine and Family Programs, Marine Corps Community Services, Marine Corps Air Station.
2. On August 10, 2015, the first level supervisor (Supervisor) directed her to do
a follow-up with a family, request from the family a copy of the forms submitted by the family to the Exceptional Family Member Program Office at the Marine Corps Air Station Beaufort, if available, (knowing that a case had never been created) and request that the family complete a new package since it had been three (3) years, and it was time to update their information.
The Agency dismissed the complaint. The Agency failed to cite the regulation upon which it relied in order to dismiss the matter. However, the Agency noted that, to state a claim based on reprisal for engaging in protected EEO activity, a complainant must allege an adverse personnel action based upon a retaliatory motive, or facts that describe adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party from engaging in protected activity. The Agency's final decision determined that Complainant's claim failed to meet either of the requirements. In addition, the Agency stated that Supervisors have the power and authority to give instructions and orders to their subordinates. As such, the Agency dismissed the complaint at hand.
Complainant appealed. She asserted that she was in fact harmed by the alleged actions of the Director and the Supervisor. She indicated that the Director suggested that she could be retired based on the alleged event. She argued that following her prior EEO activity, management took these actions against her. As such, she claimed that she asserted a claim of unlawful retaliation. The Agency responded to the appeal asserting that her appeal was untimely filed and requested that the Commission deny the appeal.
ANALYSIS AND FINDINGS
Untimely Appeal
EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the Commission must be filed within 30 calendar days after Complainant receive notice of the Agency's decision. The regulation further provides that a document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b). We note that the Final Agency Decision was issued on September 22, 2015. Complainant filed her appeal with the Commission on October 20, 2015. We find that Complainant's appeal was filed well within 30 calendar days. The Agency asserted that the appeal was untimely filed based on its receipt of Complainant's appeal. The regulations provide that the timeliness of the appeal is based on the filing of that appeal to the Commission, not the Agency. Id. (emphasis added) Therefore, we find that the appeal is timely and we shall address Complainant's appeal of the Agency's final decision.
Failure to State a Claim
As noted above, the Agency failed to cite the regulation upon which it relied to dismiss the complaint. However, based on the language within the decision, it appears that the Agency dismissed the matter for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).3 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).
Here, however, Complainant has asserted that she was subjected to unlawful retaliation for her prior protected activity. 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. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also 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.
In the instant matter, Complainant asserted that, following the resolution of her prior EEO matter, the Director gave her a verbal counseling and suggested that she could be dismissed for her action. In addition, the Supervisor asked Complainant to follow up with a family based on forms they were to have filled out in 2012. She noted that she was not the person assigned to the family and the forms were not processed by the Agency back when they were submitted 3 years prior. Complainant was required to ask the family for additional documentation for forms that should have been processed years ago. This placed Complainant in a negative and difficult situation with which she was not previously involved. Complainant believed that she was being sabotaged by the Supervisor following her prior protected activity. We find that these events are sufficient to state a claim of unlawful retaliation in that Complainant has asserted events that would be reasonably like to deter her or others from engaging in protected activity. As such, we find that the Agency's dismissal of the complaint was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing 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 (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
April 6, 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.
2 We note that we could not discern from the record under which EEO statute Complainant alleged discrimination in her prior informal EEO matter.
3 We remind the Agency that it should clearly set forth the circumstances under which it is dismissing a complaint pursuant to 29 C.F.R. � 1614.107(a) as well as its reasoning for dismissing the complaint in all dismissal decisions and include evidence in the record that supports the grounds for dismissal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5, IV (Aug. 5, 2015).
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