Linda C. Gross, Complainant,v.Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionFeb 23, 2012
0120112342 (E.E.O.C. Feb. 23, 2012)

0120112342

02-23-2012

Linda C. Gross, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.




Linda C. Gross,

Complainant,

v.

Leon E. Panetta,

Secretary,

Department of Defense

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0120112342

Agency No. DFAS-00042-2011

DECISION

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

decision dated February 22, 2011, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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. Upon review, the

Commission finds that Complainant's complaint was improperly 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 Systems Analyst in the Information Technology Services

Directorate at the Defense Finance and Accounting Service facility in

Indianapolis, Indiana. On March 16, 2011, Complainant filed an EEO

complaint alleging that the Agency subjected her to discrimination and

a hostile work environment on the bases of sex (female), disability,

age (62), and in reprisal for prior protected EEO activity when:

1. On January 20, 2011, she was verbally counseled about her work

performance and accused of falsifying her resume; and

2. On March 18, 2011, she received Notice of Proposed Removal.

On February 22, 2011, the Agency dismissed Complainant’s complaint.

The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(1) for

failure to state a claim. The Agency determined that Complainant failed

to show that she was aggrieved as a result of the alleged discriminatory

incident. Thus, the Agency found that claim (1) failed to state a claim.

Regarding claim (2), the Agency found the single incident of receiving

the Notice of Proposed Removal was not sufficiently severe or pervasive to

rise to the level of a hostile work environment. As a result, the Agency

dismissed claim (2) for failure to state a claim. Complainant submitted

no arguments or contentions on appeal.

ANALYSIS AND FINDINGS

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. Dep't of the Air Force, EEOC Request

No. 05931049 (Apr. 21, 1994).

A fair reading of Complainant’s complaint and the related EEO

counseling materials reveals that Complainant is alleging a pattern of

harassment culminating in her receiving a notice of proposed removal.

The Commission has held that where a complaint does not challenge

an agency action or inaction regarding a specific term, condition,

or privilege of employment, the claim may still survive as evidence of

discriminatory harassment if the actions complained of are sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23

(1993). Whether the harassment is sufficiently severe to trigger a

violation of EEO statutes must be determined by looking at all of the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, and

whether it unreasonably interferes with an employee's work performance.

See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC

Notice No. 915.002 (Mar. 8, 1994). In determining whether a harassment

complaint states a claim, the Commission has repeatedly examined whether

the allegations, when considered together and assumed to be true,

are sufficient to state a hostile or abusive work environment claim.

See Estate of Routson v. Nat’l Aeronautics and Space Admin., EEOC

Request No. 05970388 (Febr. 26, 1999).

In addition, the Commission notes that Complainant has raised an

allegation of retaliation. The Commission has a policy of considering

reprisal claims with a broad view of coverage. See Carroll v. Dep’t 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.

Applying these principles, the Commission finds that Complainant has

stated a viable claim of discriminatory and retaliatory harassment that

requires further investigation and processing. Accordingly, the Agency's

final decision dismissing Complainant's complaint is REVERSED, and the

complaint is REMANDED in accordance with the following Order.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with

29 C.F.R. § 1614.108. 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 (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 (Nov. 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

February 23, 2012

Date

2

0120112342

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120112342