0120120047
03-06-2012
Lisa Ballard-Collins, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Lisa Ballard-Collins,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120047
Agency No. ARSHAFTER11MAR01488
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 13, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Information Technology Specialist at the U.S. Army Garrison-Hawaii
at Wheeler Air Force Base in Hawaii.
On May 18, 2011, Complainant filed a formal EEO complaint alleging
she was subjected to ongoing harassment on the bases of race (Black),
sex (female), and reprisal for engaging prior protected activity.
With respect to her reprisal claim, Complainant alleged she had filed
an earlier EEO complaint against her management, and the fact-finding
conference on that complaint was held on January 18 and 19, 2011. In
support of her claim of harassment, Complainant indicated that the
following events occurred:
1. on February 15, 2011, Complainant was informed that her compensatory
time requests for January 18 and 19, 2011, the dates of her fact-finding
conference on her prior EEO complaint, were denied;
2. Complainant was accused of falsely requesting compensatory time;
3. on February 18, 2011, the Supervisor drafted a disciplinary action
which was not executed;
4. on February 22, 2011, Complainant believed that the Supervisor
improperly treated her property when he found her purse in a training
room and had his assistant search through the purse; and
5. in March 2011, the Supervisor refused Complainant’s request
to correct the team leave calendar he maintained, which incorrectly
indicated Complainant had taken significantly more leave than she had
actually taken.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), finding that each event failed to state a claim of
harassment.
Complainant appealed asserting that she has been subjected to unlawful
harassment based on her prior EEO complaint. Complainant argued that
she was accused of fraud, denied compensatory time, and had her privacy
invaded when the Supervisor requested that her purse be searched. As
such, Complainant claimed that she was harmed by the alleged harassment.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency
shall accept a complaint from an 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 (April
21, 1994). If complainant cannot establish that she is aggrieved,
the agency shall dismiss a complaint for failure to state a claim.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission has
repeatedly examined whether a complainant’s harassment claims, when
considered together and assumed to be true, were 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
(February 26, 1999). In her complaint, Complainant alleged a series of
events which allegedly occurred from January 2011 through March 2011.
Specifically, Complainant alleged that she was subjected to harassment
including tangible and intangible employment actions which she believed
created a hostile work environment. Instead of treating these events as
incidents supporting a single claim of ongoing harassment, the Agency
looked at them individually. Thus, we find that the Agency acted
improperly by treating matters raised in Complainant’s complaint in a
piecemeal manner. See Meaney v. Dep’t of the Treasury, EEOC Request
No. 05940169 (Nov. 3, 1994) (Agency should not ignore the "pattern aspect"
of Complainant’s claims and define issues in a piecemeal manner where
an analogous theme unites the matter complained of). Consequently,
when Complainant’s claims are viewed in the context of Complainant’s
complaint of harassment, they state a claim and the Agency’s dismissal
of those claims for failure to state a claim was improper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter for further processing
in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing harassment)
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 (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
March 6, 2012
__________________
Date
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0120120047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120047