0120111343
06-09-2011
Kelly N. Hubbard, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Kelly N. Hubbard,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120111343
Agency No. FBI-2010-00150
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 24, 2010, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Investigative Specialist at the Agency’s Federal Bureau of
Investigation, Houston facility in Houston, TX. She filed a formal
complaint alleging that her former supervisor (S1) subjected her to
discrimination and harassment on the bases of sex (female), disability,
and reprisal for prior protected EEO activity when:
1. since 2008, he attempted to remove her from the Special Surveillance
Group (SSG);
2. in 2008, he commented that she was sick long enough and should think
about a different career;
3. in October 2008, she received a minimally successful rating on
her performance evaluation report which was subsequently changed to
successful;
4. on October 7, 2008, he asked her to provide a letter from a doctor
stating she was fit for duty;
5. on October 21, 2008, he discussed information contained in a medical
letter dated October 16, 2008, openly without her permission;
6. after receiving a doctor’s note letter dated December 8, 2008,
he advised that if she were disabled such that she could not do her job,
she could not drive a Bureau vehicle to and from work;
7. on December 11, 2008, he requested a copy of her workers’
compensation claim to confirm she could not drive a vehicle; and
8. on March 29, 2010, he discussed with another supervisor her possible
removal from SSG.
Prior to contacting an EEO counselor in regard to this complaint,
Complainant made a prior EEO contact with an EEO counselor, which
she withdrew. On December 29, 2008, Complainant signed a memorandum
that despite her belief of possible discrimination, she did not wish to
pursue her issues as an EEO matter. The memorandum advised that should
Complainant later decide to proceed in the EEO process on the matters
discussed, it was her responsibility to do so within 45 calendar days
of the dates of the actions in question.
Thereafter, on April 2, 2010, Complainant contacted an EEO counselor
in regard to her complaint. According to the counselor’s report,
Complainant stated the following on claim 8: while S1 was no longer in her
chain of command, he went to Supervisor 2 (S2) and said Complainant should
be removed from SSG. S2 told S1 to “stand down” and it was none of
his business, but S1 then went to a manager to discuss why Complainant
should be removed from SSG. According to the counselor’s report,
Complainant stated S2 is creating a good working environment for her
to recover.
The Agency dismissed claims 1 through 7 for failure to timely initiate EEO
counseling. It found that Complainant previously brought these matters to
the attention of an EEO counselor on December 18, 2010, but withdrew this
EEO contact on December 29, 2008. It found that while claim 8 was timely,
the significant time lapse between it and the prior claims precluded
them from being considered one timely hostile work environment claim.
The Agency dismissed claim 8 for being a proposal to take a personnel
action. 29 C.F.R. § 1614.107(a)(5). It also found that
claim 8 failed to state a claim because it did not rise to the level of
actionable harassment.
CONTENTIONS ON APPEAL
Complainant contends that from September 2008 to January 2009 S1 tried to
have her removed from SSG, and the harassment was constant until an upper
level supervisor in the FBI’s Houston Division stepped in and made him
cease. She stated that she dropped her EEO case at that time due to the
support of the upper level supervisor and the need to focus on her health.
Complainant writes that S1 was no longer in her chain of command after
April 2009. She reiterated claim 8, and added that when S1 went to the
manager, he also told him to mind his own business. In opposition to
the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of
the alleged discriminatory action, or in the case of a personnel action,
within 45 days of the effective date of the action. 29 C.F.R. §�
�1614.105(a)(1) & .107(a)(2). The last incident in claims 1 through 7
occurred on December 11, 2008, and Complainant did not contact an EEO
counselor with regard to her complaint until April 2, 2010, more than
14 months beyond the time limit. Given S1’s long cessation of alleged
harassment after December 2008, we find that his new incidents in March
2010 are not part of the prior hostile work environment, and hence the
complaint is not one timely claim. In making this finding, we also take
into consideration that S1 was no longer in Complainant’s chain of
command after April 2009, and Complainant’s contention that management
promptly and unequivocally rejected S1’s March 2010 overtures,
undermining its connection to a prior alleged hostile work environment.
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) allows the dismissal of
a claim that alleges a proposal to take a personnel action or other
preliminary step to taking a personnel action is discriminatory.
We find this regulation does not apply to claim 8. There is no claim
that the Agency made a proposal or took any preliminary steps to remove
Complainant from SSG.
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
We find that claim 8 does not rise to the level of actionable harassment.
S1 was no longer in Complainant’s chain of command, and according to
Complainant, his two efforts in March 2010 to get her removed from SSG
were promptly met with comments to stand down and mind his own business.
For this reason, we find that S1’s actions in March 2010 did not alter
the conditions of Complainant’s employment. We also find that this
S1’s actions in claim 8 would not reasonably likely deter EEO activity.
The FAD 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 9, 2011
__________________
Date
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0120111343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111343