0120131771
08-21-2013
Melissa A. Clark, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Melissa A. Clark,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120131771
Agency No. P6-13-0019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 15, 2013, 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 a Administrative Contracting Officer at the Agency's facility in Hampton, Virginia.
On January 25, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of religion (Christianity) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of her claim of harassment, Complainant asserted that the following events occurred:
1. On November 9, 2012, the Supervisor accused Complainant of sexual harassment and referenced allegations from her prior EEO complaint.
2. On or about November 9, 2012, the Supervisor waived Complainant's Weingarten Rights during her meeting with Complainant's Team Leader.
3. On or About November 8, 2012, the Supervisor denied Complainant's request for union representation during a meeting with the Team Leader and Commander.
4. On November 7, 2012, the Supervisor spoke to Complainant in a "bullying tone" regarding the proper utilization of protocol and supervisory chain of command.
5. On May 22, 2012, the Supervisor accused Complainant of interjecting religion into the workplace.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that the events, taken as a whole, were not sufficient to state a claim of harassment. As such, the Agency dismissed the complaint. This appeal followed.
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).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The EEO process is not the proper forum for Complainant to raise her challenges regarding her Weingarten Rights or Union representation. As such, we find that the Agency properly dismissed events (2) and (3) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
As such, we shall review the Agency's dismissal of Complainant's claim of harassment based on events (1), (4), and (5). As noted above, 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 has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is 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).
On appeal, Complainant provided additional details of the events raised in support of her claim of harassment. As to event (1), Complainant indicated that the Supervisor came to her desk and asked her into her office to discuss an audit disposition at 3:30 p.m. At 3:30 pm, the Team Leader came to Complainant and asked to come with her to the Supervisor's office. They discussed the audit for three to four minutes. Then the Supervisor asked about a conversation Complainant was having in her cubicle. The Supervisor noted that Complainant was discussing body parts and specific areas where she and a co-worker needed to lose weight. The Supervisor noted that this was borderline sexual harassment and that Complainant should be aware of the conversations she was having in the workplace particularly in her cubical. In addition, the Supervisor indicated that Complainant referred to her chest area as "Chicas" and suggested that Complainant be more careful. Complainant noted that there was vulgarity in the workplace caused by a co-worker (CW1)
As to event (4), Complainant noted that on the date in question, the Team Leader came to Complainant's desk telling her that the Supervisor wanted to meet at 7:45 a.m. Complainant called her co-worker (CW2) to find out if he had called the Supervisor. The CW2 stated that he told the Supervisor about Complainant's complaints of CW1 and his vulgarity. Complainant went to the Supervisor's office where she said to Complainant in a "bullying and hostile tone" that Complainant did not have the right to talk to CW1's Team Leader, namely CW2. Complainant was informed that the Supervisor had spoken to CW1 about the vulgarity issue in May 2012.
Finally, Complainant elaborated on event (5). Complainant indicated that on May 22, 2012, the Supervisor talked to Complainant about a private conversation she had with a co-worker (CW3) about religion which could lead to a complaint. Again, Complainant was informed about being careful in the workplace. She had the Team Leader write up the discussion and had Complainant sign it.
We note that Complainant has not shown that she was harmed by these three events. Furthermore, the events taken as a whole are insufficient to state a claim of a hostile work environment. Regarding complainant's claim of retaliatory harassment, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. We determine that Complainant has not asserted events would be reasonably likely to deter Complainant or others from engaging in protected activity. Accordingly, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was appropriate.
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 (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
August 21, 2013
__________________
Date
2
0120131771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131771