0120152873
03-11-2016
Lynette B.,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
Lynette B.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152873
Agency No. 15-4523A-01832
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 13, 2015, dismissing a formal 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
During the period at issue, Complainant worked as a Data Support Assistant at the Agency's Puget Sound Naval Shipyard and Intermediate Service Facility in Bremerton, Washington.
On July 8, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment in reprisal (for non-EEO activity) when:
1. a supervisor used profanity and yelled in her direction to try to "put you in your place;" and
2. she was moved from a private office, which was part of a "settlement agreement," into an open work area.
Complainant alleged that she was being retaliated against because she refused to hand our keys to employees outside her work group. The employees made a complaint to their supervisor (Supervisor 1) who then had a conversation with another supervisor (Supervisor 2) in the open work area in which Complainant and both supervisors are assigned. Complainant further alleged while Supervisor 1 was not speaking directly to her, she felt he was trying to "put her in her place" and was offended by his use of the word "shit."
Further, Complainant alleged that her move into the above open work area in direct violation of an "EEO settlement agreement" that purportedly provided her with the right to a private office. Complainant stated that, due to her disability, she was bothered by other employees and was having difficulties concentrating on her work. Complainant was asked if she would like to meet with Reasonable Accommodation Services and an appointment was scheduled for her. Complainant was told the EEO office inquire into her alleged EEO settlement agreement. The record reflects that Complainant's claim of an EEO settlement agreement could not be located after an extensive search. Complainant provided the EEO office with a copy of her "settlement agreement" which was actually a job offer dated February 2, 2010.
In its August 13, 2015 final decision, the Agency dismissed claims 1 - 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency stated that in regard to claim 2, Complainant's allegation that she was moved into an open work area which was a violation of a settlement agreement, the "settlement agreement" was later identified as a job offer, not an EEO settlement agreement.
Moreover, the Agency found that because Complainant claimed that her reprisal claim was not related to her prior EEO activity, her claims must be dismissed.
The instant appeal followed.
ANALYSIS AND FINDINGS
Reprisal as a basis
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order to establish discrimination based on retaliation, an individual must initially be able to show that he or she engaged in prior EEO activity based on 29 C.F.R. � 1614.101(b).
We note that a review of the formal complaint and EEO Counselor's Report reflect that Complainant does not claim on appeal that she engaged in any protected EEO activity under the Commission's jurisdiction. For instance, Complainant asserted that she was retaliated against based on making a complaint to her supervisor about personnel being moved into her workspace outside the union contract and having to "deal with a new group of people." As reprisal was the sole basis raised, we find that the dismissal of the instant formal complaint for failure to state a claim was proper.2
Failure to state a claim
Assuming arguendo, that Complainant's reprisal basis was indeed based on prior protected activity, the matters raised in the formal complaint would nevertheless fail to state a claim.
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).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
The Agency's final decision dismissing the formal complaint for failure to state a claim for the reasons stated here is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
March 11, 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 We acknowledge that Complainant made reference to being bothered by other employees due to a disability. However, we emphasize that the pre-complaint documentation as well as the subject formal complaint solely identify reprisal as the raised basis.
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