Joi C. Hatch, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 22, 2009
0120091270 (E.E.O.C. May. 22, 2009)

0120091270

05-22-2009

Joi C. Hatch, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Joi C. Hatch,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120091270

Agency No. FNCS200800816

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 30, 2008, 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.

At the time of the events at issue, complainant was employed by the agency

as a GS-13 Regional Nutritionist with the Food and Nutrition Service.

In an EEO complaint dated September 16, 2008, complainant alleged

that she was subjected to discrimination on the bases of sex (female)

and reprisal for prior protected EEO activity when her second-line

supervisor held an inappropriate conversation in an open area with the

SES-level Service Administrator, the highest-ranking official in the

Food and Nutrition Service. Specifically, complainant alleged that she

overheard her supervisor referencing complainant's prior EEO complaint

to the Administrator and stating that, "[complainant] does not know

how to file an EEO complaint." Complainant asserted that she felt

intimidated by this conversation. The agency dismissed the complaint

pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,

asserting complainant was not aggrieved. The instant appeal followed.

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).

However, the anti-retaliation provisions of the employment discrimination

statutes seek to prevent an employer from interfering with an employee's

efforts to secure or advance enforcement of the statutes' basic

guarantees, and are not limited to actions affecting employment terms

and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White,

548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of

retaliation, complainant must allege that: 1) s/he was subjected to an

action which a reasonable employee would have found materially adverse,

and 2) the action could dissuade a reasonable employee from making

or supporting a charge of discrimination. Id. While trivial harms

would not satisfy the initial prong of this inquiry, the significance

of the act of alleged retaliation will often depend upon the particular

circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20,

1998) (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 states a claim).

In the present case, complainant has alleged that her second-level

supervisor chose to discuss her prior EEO activity with the highest

ranking official in the Food and Nutrition Service within complainant's

earshot in order to intimidate her. The involved management officials

have denied the event. The Commission finds that complainant has

alleged a viable claim of reprisal that requires further investigation

to establish what actually happened and why. Accordingly, the agency's

dismissal is reversed and the complaint is remanded to the agency for

further processing in accordance with the following Order.

ORDER (E0408)

The agency is ordered to process the remanded claim in accordance with 29

C.F.R. � 1614.108 et seq. 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 (K0408)

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 19848,

Washington, D.C. 20036. 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

May 22, 2009

__________________

Date

2

0120091270

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091270