0120123015
12-18-2012
Johanne Durbin, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Johanne Durbin,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120123015
Agency No. ARCARSON12MAR01052
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 22, 2012, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as a Firefighter Paramedic at the Agency's Directorate of Emergency Service, Fire Department in Fort Carson, Colorado.
On June 13, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the basis of sex when:
a. on January 10, 2012, the Captain yelled at her on scene of call saying "why are you not with your patient...don't listen to me, just do what I tell you to do and get back to your patient." The discussion continued at the Fire Station and a different Captain shouted at her "when the EMTB denied assistant that should have told you to take over patient care." "Every call we go on you take your time and move in a manner that is not efficient and delay patient care." When Complainant told the Captain "if you were really concerned with me providing patient care, you would assist us" he shouted "that's beside the point and not relevant. From now on, you will not order me around on scene or at the station and you will watch how you address me at work;"
b. on January 14, 2012, the Captain said to Complainant "you are such a whore" because she accepted a condiment fund card from her ex-finance and said she was misleading him;
c. on February 1, 2012, the Captain sent her a text saying "you're f'n fired" because you forgot to put in a purchase request and later that day embarrassed her in front of [a named employee] about not knowing how to put in the purchase request and then told [a named employee] to help her;
d. on February 10, 2012, during a truck training exercise, the Captain yelled at her to come down the aerial ladder in the presence of both crews. That evening the Captain addressed the issue in front of [three named employees] and asked "if this was a high stress situation would you not go in and do your job?;"
e. on February 16, 2012, the Captain failed to relay patient information for a named paramedic that was necessary for Complainant to complete her report;
f. on February 29, 2012, the Captain and Chief instructed [a named employee] not to debrief the training exercise with the group and singled out Complainant for taking too long with the fire hydrant;
g. on February 29, 2012, the Chief attempted to have a mediation with Complainant and the Captain. The Captain raised his voice and the Chief told him there was no need to yell and told Complainant there was no need to respond with an attitude. During the conversation, the Captain stated "I have four other people to supervise and I don't have the time to pull you aside to talk to you about the situation;" and
h. on March 14, 2012, the Captain counseled Complainant and [named employee] on an aerial ladder training evaluation without consulting Complainant's supervisor.
In its June 22, 2012 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's formal complaint for failure to state a claim. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
A review of the EEO Counselor's Report reflects a series of incidents that include Complainant's being harassed when the Captain routinely demean and belittle her while management did not take any corrective action; the Captain yelled at her on scene asking her why she was not with her patient; the Captain called her a "whore" because she accepted a condiment fund card from her ex-finance and that she was misleading him; texted her saying that she was fired because she forgot to put in a purchase request and later embarrassed her that day in front of other employees; the Captain yelled at her during a training exercise and ordered her to come down the ladder in front of the crew; the Captain failed to relay important patient information for a paramedic that was necessary for her to complete the report; the Captain and the Chief instructed a named employee not to debrief the training exercise with her group and singled her out for taking too long with the fire hydrant; and the Captain counseled her and another employee on an aerial ladder training evaluation without consulting with her supervisor.
As a remedy, Complainant requested that the Captain be moved to a different station and not to work under his leadership; and "time off from work." By alleging a pattern of harassment, Complainant has clearly stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as 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 et seq. 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 (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 (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 (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 (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
December 18, 2012
__________________
Date
2
0120123015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123015
7
0120123015