0120180375
04-12-2018
Mozelle G.,1 Complainant, v. Dr. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mozelle G.,1
Complainant,
v.
Dr. Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120180375
Agency No. 200J03762017103591
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 12, 2017, 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 Contract Representative, GS-6/Step 3, at the Agency's Records Management Center facility in St. Louis, Missouri.
On June 2, 2017, Complainant contacted an EEO Counselor.2 On September 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII, when:
1. On April 21, 2017, she was accused of not meeting her work production;
2. On April 26, 2017, she was accused of not signing her performance evaluation; and
3. On September 23, 2017, she was required to participate in a fact-finding investigation with regard to her harassment claims.
The pertinent record shows that during the period of June 2016 to July 2017, Complainant reported to her supervisor (RMO1), who is named as the only named responsible management official. Complainant claims that, beginning on April 11, 2017, RMO1 started to send her emails telling Complainant that she was not making production. On April 21, 2017, RMO1 accused Complainant of not meeting her work production. On April 26, 2017, RMO1 accused her of not signing her mid-year performance evaluation. Complainant claimed that she was not asked to sign the performance evaluation. The record shows that Complainant was asked to participate in a second fact-finding investigation, on September 23, 2017, regarding her claims of harassment.
Complainant does not allege, and the record does not show, that any adverse personnel actions were taken against her or that she suffered harm from the three alleged incidents. Further, the record shows that after she asked to be assigned to a new supervisor, the Agency granted her request on July 10, 2017.
The Agency Decision
The Agency dismissed the complaint for failure to state a claim and for failure to comply with the regulatory time limits. The Agency determined that her claims regarding actions taken in 2016 were untimely and abandoned because she did not file a complaint on the claims. The Agency concluded that her "harassment claim based on reprisal fails the severe or pervasive requirement for further processing." The Agency reasoned that if proven true, a reasonable person would not believe they were subjected to a hostile work environment because the events are not matters that establish a pattern of offensive conduct or would deter a reasonable person from engaging in the EEO process. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant did not address the Agency's dismissal decision. Instead, she submitted a one-page hand-written statement, caption "Reasonable Accommodations Needed." In that November 8, 2017 statement, Complainant advised us of the name of her new representative. She also stated that she would be out of the office for an extended period and provided her cellphone number. She provided her mailing and email address, but she asked to be called on her cell phone and informed of the steps needed to be taken. We do not have a record of any brief being filed on her behalf.
In response, the Agency asks that we affirm its dismissal.
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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
We find that the Agency's rationale for its dismissal, that Complainant's claims failed to meet the severe or pervasive threshold for a hostile environment claim, addressed the merits of the claim and are irrelevant to the procedural issue of whether the matter stated a viable claim. We find, however, that the complaint fails to state a claim under the EEOC regulations regarding the three timely filed claims, because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In this case, Complainant did not allege that she was aggrieved by the three actions. Further, she failed to file a complaint on the 2016 incidents after she was issued a Notice of Right to File. She cannot resurrect those claims in this action.
Upon review, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 12, 2018
__________________
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 The record shows that Complainant initiated EEO contact on October 21, 2016 alleging harassment regarding three alleged incidents that occurred in 2016. She received her Notice of Right to File letter on January 12, 2017, but she did not file a formal complaint on those matters.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180375
5
0120180375