0120150093
03-24-2016
Sheryl S.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheryl S.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150093
Agency No. ARUSMA14JUL02587
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated September 12, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Technician at the Agency's Office of the Staff Judge Advocate facility in West Point, New York.
On September 2, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (torn anterior cruciate ligament/reflex sympathetic dystrophy syndrome/patella-femoral syndrome), age (50), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Complainant was denied a copy of the facility's reasonable accommodation policy (dated unspecified).
2. On June 3, 2014, Management Officials in Complainant's chain of hierarchy accepted a decision by the Merit Systems Protection Board (MSPB) that sustained Complainant's removal.
3. The Agency used the word "termination" on the SF 50 Form removing her from federal service.
4. On unspecified dates, unspecified Agency personnel gave false testimony to Federal District Court, MSPB and NY State Department of Labor proceedings.
5. After Complainant's June 3, 2014 removal from her position, she was denied the opportunity to continue her federal employee health benefits.
6. On an unspecified date or during an unspecified period, Management Officials in Complainant's supervisory chain failed to follow the Agency's Reasonable Accommodation Policy.
7. On unspecified dates, Complainant's supervisory chain treated her differently in unspecified ways with regards to the use of government vehicles.
8. On August 24, 2014, information about Complainant's prior EEO complaint was intentionally and wrongfully given to an Agency Labor Attorney (ALA).
9. On August 24, 2014, information about Complainant's prior EEO case was intentionally and wrongfully given to ALA even though he had recused himself from matters pertaining to her.
10. On August 24, 2014, ALA and others intentionally and wrongfully attempted to block Complainant's right to have an investigation by the Equal Employment Opportunity Commission's Office of Federal Operations of management failures regarding reasonable accommodation policy at the facility.
11. On October 30, 2013, Complainant was denied a copy of the facility's Reasonable Accommodation Policy.
12. On November 30, 2013, management ignored Complainant's request for a copy of the transcript of the MSPB hearing.
13. On November 30, 2013, Complainant reserved the right to submit additional complaints under a separate complaint process in anticipation of fairness via the informal process.
14. On an unspecified date and by unspecified means, Complainant requested reconsideration of her EEO complaints submitted in 2013.
The Agency dismissed the claims on various grounds. With regards to claims 1, 2, 3, 11, 12 and 13, the Agency found that Complainant failed to state a claim. With regards to claims 1 and 11 the Agency found that the claims were moot. With regard to claims 2, 3, 4, 5 and 12, the Agency found that these constituted a collateral attack on another proceeding. With regard to claims 1, 4, 6, 7, 11, 12, 13 and 14, the Agency found that the claims should be dismissed for untimely EEO Counselor contact. With regard to claims 2, 3, 5 and 12, the Agency found that the claims should be dismissed because Complainant had elected to pursue the MSPB process. With regards to claims 8, 9, 10, 13 and 14, the Agency found that the claims should be dismissed for alleging dissatisfaction with previously filed EEO complaints. Finally, with regard to claims 1, 4, 6, 7, 8, 9, 10, 13, and 14, the Agency found they should be dismissed as an abuse of the EEO process.
ANALYSIS AND FINDINGS
We note initially that on appeal, Complainant contends that the Agency has mischaracterized her claims as articulated in her Formal Complaint. Following a review of the record we find that the Agency's characterization of Complainant's claims, while more succinct than Complainant's, are substantively no different than the claims Complainant presented in her Formal Complaint. We further note that the Agency, on appeal, has argued that Complainant's claims should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3) because Complainant has filed a claim in Federal District Court. The Agency argues that "[s]aid complaint, although rambling and unfocused, essentially presents the same claims, and if not the same, certainly directly related thereto, as presented in the captioned appeal in addition to those as presented in the claims now before" the Commission. Agency Brief, p. 2. To the extent Complainant is alleging in claims 1 and 11 that being denied a copy of the facility's reasonable accommodation policy amounted to a denial of reasonable accommodation, we find that those claims should be dismissed on the grounds that Complainant has chosen to file the claims in Federal District Court. However, following a review of Complainant's Federal Court's filing, provided by the Agency, we find that the Agency has not shown that any of the remaining claims form "the basis of a pending civil action in a United States District Court." � 1614.107(a)(3)
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable.
The Agency found that claims 1, 2, 3, 11, 12 and 13 should be dismissed for failure to state a claim on the grounds that Complainant does not allege she suffered a current harm or loss. With regard to claims 1 and 11, we note that to the extent Complainant is alleging that being denied a copy of the Agency's reasonable accommodation policy amounted to a denial of reasonable accommodation, we have addressed that claim above. To the extent Complainant is alleging that being denied a copy of the policy in itself caused a harm or loss, we agree with the Agency's dismissal with regard to those two claims, as well as claims 2, 3, 12, and 13, and we further find that claims 7, 10, and 14 also do not contain allegations that Complainant suffered a current harm or loss. We further note that Complainant has alleged retaliation as a basis of discrimination. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Under this standard we find Complainant has failed to state a claim of retaliation as the acts complained of are not the kind of actions that are reasonably likely to deter Complainant or others from engaging in protected activity. With regard to harassment, the actions complained of are simply not severe or pervasive enough to state a claim of harassment.
With regard to claims 4 and 5, we note that the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). Despite Complainant's claim on appeal that "I am not challenging another forum - I am stating brand new complaints of false testimony to discriminate by use of unsigned policy - these are brand new facts, brand new complaints that came alive upon the testimony of the Chief of Staff" the proper fora for complainant to raise her challenges to allegedly false testimony given by unspecified Agency personnel in proceedings in Federal District Court, before the MSPB, and in NY State Department of Labor proceedings is generally within those proceedings themselves. Furthermore, the MSPB sustained Complainant's removal from Federal employment, and the discontinuation of her Federal health benefits is inextricably intertwined with that action. As such, the proper forum for Complainant to challenge that action is with the MSPB. Hence, we find that claims 4 and 5 do not state valid claims.
With regard to claim 6, the Agency dismissed the claim for untimely EEO Counselor contact. We note, however, that Complainant has not provided sufficient information to determine when the alleged incident occurred and hence we cannot determine whether or not Complainant's Counselor contact was timely. However, we further note that Complainant has not alleged that she herself incurred injury or harm. Complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups, unless she further alleges some specific injury to herself as a result of the alleged discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997; Rodriguez v. Department of the Treasury, EEOC Appeal No. 01970736 (August 28, 1997. To the extent Complainant is alleging that Management Officials harmed employees in general by allegedly failing to follow the Agency's Reasonable Accommodation Policy, the claim is dismissed as constituting a generalized grievance. To the extent Complainant is alleging she was harmed, the claim is identical to claims 1 and 11 and is dismissed for the same reason those claims are dismissed.
With regard to claims 8 and 9, we find the claims to be identical and hence we consolidate them into a single claim. The Agency dismissed the claim(s) on the grounds that Complainant was alleging dissatisfaction with the EEO process and that the claim(s) constituted an abuse of process. Pursuant to 29 C.F.R.�1614.107(a)(8) the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Pursuant to � 107(a)(9), the Agency shall dismiss a complaint where the complaint is "part of a clear pattern of misuse of the EEO process for a purpose other than prevention and elimination of employment discrimination." In the instant complaint, however, Complainant does not appear to be alleging dissatisfaction with the processing of a previously filed complaint but instead is alleging that her EEO complaint was not kept confidential. Furthermore, her complaint does not appear to be an abuse of the process. While the claim does not contain an allegation of harm or loss, as noted earlier, however, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Because we find that the inappropriate sharing of her confidential EEO complaint is the kind of action that is "reasonably likely to deter" Complainant or others from engaging in protected EEO activity we find that the claim states a valid claim of reprisal.
In summary, we find that claims 1, 2, 3, 7, 10, 11, 12, 13, and 14 fail to state a claim, claims 4 and 5 constitute collateral attacks against other fora, and claim 6 is a generalized grievance. We further find that claims 8 and 9 are identical and further, that the single consolidated claim states a valid claim of reprisal.
CONCLUSION
We therefore AFFIRM the Agency's Dismissal in part and REVERSE in part, and we REMAND this case to the Agency to take remedial action in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (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 (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 (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 24, 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.
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