0120100496
06-24-2011
Joe A. West, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Joe A. West,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100496
Agency No. 094523A02462
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Dismissal) dated October 13, 2009, dismissing her complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
791 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 Heavy Mobile Equipment Mechanical Inspector at the Agency’s Puget
Sound Naval Shipyard facility in Bremerton, Washington.
On August 28, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), color (Black), disability (severe
depression), age (48 years at time of incidents), and reprisal for prior
protected EEO activity when:
1. on June 10, 2009, Complainant was issued a written directive that
she provide updated medical documentation1 by June 22, 2009, and a few
days later she was scheduled for a pre-action investigation interview
into why she did not submit the requested documentation by the June 22
deadline; and
2. on August 4, 2009, the work assignment Complainant was performing
through the Injured Workers Program was changed into a full-time,
permanent position, to which another employee was assigned.
The Agency dismissed claim 1 for failure to state a claim on the grounds
that it did not involve a discrete employment action and the actions
alleged were insufficiently severe or pervasive to state a claim of
harassment. As regards claim 2, the Agency dismissed the claim on the
grounds that Complainant failed to bring the matter to the attention
of an EEO Counselor and the matter was not like or related to matters
previously brought to the attention of a Counselor.
CONTENTIONS ON APPEAL
On appeal, Complainant raises several additional claims for the first
time. The Agency argues that such claims have been improperly raised for
the first time on appeal, and/or such claims are not claims over with
the Commission has jurisdiction. The Agency requests that we affirm
its Dismissal.
ANALYSIS AND FINDINGS
The Commission finds that claim 1 fails to state a claim under the EEOC
regulations because complainant failed to show that she was subjected
to unwelcome verbal or physical conduct involving her protected classes,
that the harassment complained of was based on her statutorily protected
classes, and that the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has she shown she
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard
to her claim of reprisal, we note that 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).
Under such a standard, the Commission does not find that claim 1 states
a claim of reprisal given that Complainant does not allege that she
was threatened with any form of discipline for failing to produce the
updated medical documentation by the requested date.
With regard to claim 2, the regulation set forth at 29 C.F.R. §
1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a
complaint which raises a matter that has not been brought to the attention
of an EEO Counselor, and is not like or related to a matter on which the
complainant has received counseling. A later claim or complaint is "like
or related" to the original complaint if the later claim or complaint
adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995);
Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
Under this standard, the Commission finds that Complainant’s allegation
concerning the changes made to her work assignment are not like or related
to claim 1, which is the claim she raised before the EEO Counselor.
CONCLUSION
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
June 24, 2011
__________________
Date
1 Complainant further alleged that this action violated the Privacy Act.
The Agency correctly dismissed this allegation for failure to state a
claim on the grounds that the Commission has no jurisdiction to adjudicate
alleged violations of the Privacy Act.
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0120100496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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