0120111319
12-06-2011
Lavelle Berry, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Lavelle Berry,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120111319
Agency No. 10-00024-03474
DECISION
Complainant filed a timely appeal with this Commission from the Agency’s
decision dated November 18, 2010, dismissing her complaint of unlawful
employment discrimination in violation of in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. Upon review, the Commission finds that Complainant’s
complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Financial Management Analyst at the Agency’s Naval Sea System
Command in Washington, D.C. On September 21, 2010, Complainant filed
a formal complaint alleging that the Agency subjected her to a hostile
work environment on the basis of reprisal for prior protected EEO
activity when:
1) her Supervisor (S1) requested that she speak directly to a co-worker
or management official when calling in to request leave and to not simply
leave a message;
2) S1 questioned her about an email concerning a request to use leave
without pay for medical reasons;
3) S1 constantly requested that she provide updates on the status of
her work;
4) S1 alleged that several Business Financial Managers had complained
to her that they were confused by how Complainant had handled tasks and
by the content of her emails;
5) S1 “butts” into Complainant’s email exchanges with clients and
tries to “pick a bone” with her;
6) management failed to promote Complainant and she received only one
bonus of $900 in the previous three years;
7) S1 constantly asked her to submit new medical certification to support
her request for Family Medical Leave Act leave; and
8) on November 1, 2010, management issued her a Notice of Proposed
Suspension without pay for disrespectful conduct.
In its final decision, the Agency dismissed the entire complaint, pursuant
to 29 C.F.R. §1614.107(a)(1) for failure to state a claim. Specifically,
the Agency found that Complainant had not engaged in any prior protected
EEO activity at the time of the actions cited in her complaint and,
as such, her claim of retaliatory harassment failed to state a claim.
The Agency further found that, with respect to claim (8), a proposed
action does not create a direct and personal deprivation which would
make complainant “aggrieved” within the meaning of the regulations.
Complainant makes no arguments on appeal.
ANALYSIS AND FINDINGS
Claims 1 – 7 are based on reprisal for participating in a mediation
session. The Commission finds that claims 1 – 7 fail to state a claim
based on reprisal under the EEOC regulations because Complainant failed
to show that she had engaged in prior EEO activity at the time of the
alleged discrimination. See 29 C.F.R. §1614.103(a). Complainant has
not claimed or shown that the mediation session involved participation
in the EEO process or opposition to discrimination.
In claim 8, Complainant alleged retaliation for filing the instant
complaint. On appeal, the Agency acknowledges that claim 8 was not
dismissed for the correct reason. The Agency explains that the proposed
suspension merged with the subsequent action (beginning December 6,
2010, for ten days). Where a complaint is filed on a proposed action
and the Agency subsequently proceeds with the action, the action is
considered to have merged with the proposal. See Siegel v. Pep't of
Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997). The record
shows that Complainant filed a new complaint on the issue of the actual
suspension which the Agency accepted for investigation on March 3,
2011 (Agency No. 11-00024-00512). Therefore, we find that the proposed
suspension merged into the actual suspension and states the same claim
as being addressed in Agency No. 11-00024-00512. We find that claim 8
is properly dismissed for stating the same claim as pending in another
complaint pursuant to 29 C.F.R. §1614.107(a)(1).
CONCLUSION
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
December 6, 2011
__________________
Date
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0120111319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111319