0120162248
12-15-2016
Lorita S.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lorita S.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162248
Agency No. DON 16-69450-01591
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 9, 2016, dismissing her complaint of unlawful employment discrimination in violation of the Whistle Blower Act.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer at the Agency's facility in Milton, Florida.
On March 29, 2016, Complainant contacted the EEO Counselor. On June 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior whistleblower activity2 when:
1. On November 17, 2015, Complainant was denied telework.
2. Complainant was subjected to a hostile work environment and in support of her claim of harassment, Complainant alleged that the following events occurred:
a) April 20, 2016, Complainant's supervisor (Supervisor), in a conversation with a coworker about telework stated in a loud chuckle, "oh, don't tell [Complainant] that, ha ha ha."
b) November 18, 2015, during a staff meeting the Supervisor shared with management that her telework request was denied.
c) On November 17, 2015, over the phone, the Director screamed at her, "The XO is cracking down on telework."
d) On September 19, 2015, the Lieutenant Commander reduced Complainant to tears by telling her that she was useless and nothing she did mattered.
e) On February 3, 2015, during an active shooter drill, the Lieutenant Commander, the Supervisor and the Lieutenant stood up and slammed their doors leaving Complainant sitting in front of two glass double doors to fend for herself.
f) From February 1-12, 2015, during the Citadel Curtain Exercise, Complainant came in discussing the alert situation and with the Supervisor who suggested that she bring a gun to work for her protection.
g) On April 10, 2014, Complainant emailed the Lieutenant Commander and the Supervisor regarding the manner in which the Lieutenant allegedly speaks to her in a condescending manner.
The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant alleged discrimination in retaliation for her whistleblowing activity when she filed a complaint with the Inspector General. The Agency noted that Complainant's whistle blowing activity was based on her claim of waste, fraud and abuse and did not involve a claim of discrimination in violation of Title VII. As such, the Agency determined that Complainant failed to state a claim within the jurisdiction of the EEO complaint process. The Agency also dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to raise the matter with the EEO Counselor in a timely manner. The Agency noted that Complainant contacted the EEO Counselor in March 2016, while the denial of telework alleged in claim (1) occurred in November 2015, well beyond the 45 day time limit. Further, as to claim (2), the Agency noted that the events raised in support of her claim of harassment at the time of the contact with the EEO Counselor occurred in November 2015. Therefore, the Agency also dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2).
This appeal followed. On appeal, Complainant's attorney (Attorney) argued that the Agency improperly dismissed the complaint at hand. The Attorney first asserted that Complainant was harmed by the alleged events. The Attorney focused his attention on a proposed action but argued that the Agency's dismissal went to the merits of the action. Further, he indicated that Complainant alleged harassment which stated a viable claim. In addition, he noted that Complainant's claim of harassment included all the claims raised and that the most recent event occurred in April 2016, as such, Complainant's contact with the EEO Counselor was timely raised. In conclusion, the Attorney requested that the Commission reverse the Agency's dismissal and remand the matter for processing. The Agency asked that the Commission affirm its dismissal noting that Complainant has not alleged discrimination with the purview of the EEOC.
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).
We note that Complainant indicated that the basis for her claim of discrimination is retaliation for her whistleblowing activity. The Agency dismissed reprisal as a basis for failure to state a claim, A review of the formal complaint and the EEO Counselor's Report reflect that Complainant determined that the reprisal stems from her whistleblower activity (unrelated to EEO matters) when she was subjected to harassment and denied telework. We note that the record indicated that Complainant requested telework when she was having surgery. However, neither Complainant nor the Attorney argued that the alleged claims of discrimination occurred in violation of the Rehabilitation Act. Therefore, we find that the Agency properly dismissed claims (1) and (2).3 See also Rina F. v. Dep't of Commerce, EEOC Appeal No. 0120160495 (Feb. 17, 2016).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant indicated that she was specifically alleging retaliation for her prior whistle blowing activity which involved her report to the Inspector General regarding a coworker's abuse of overtime.
3 Since we find that the Agency properly dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, we need not address the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
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