0120161776
10-21-2016
Tammi C.,1 Complainant, v. Tom Wheeler, Chairman, Federal Communications Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tammi C.,1
Complainant,
v.
Tom Wheeler,
Chairman,
Federal Communications Commission,
Agency.
Appeal No. 0120161776
Agency No. FCC-EEO-16-01
DECISION
On May 9, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 15, 2016, 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Management Advisor, GS-15 at the Agency's Office of Managing Director, Financial Operations in Washington, DC.
On March 23, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior equal employment opportunity (EEO) activity under Title VII when on September 9, 2015, she was emailed by the Acting Director of the Agency's Office of Workplace Diversity (OWD), which processes EEO complaints, that she had no right to access another employee's EEO file, violated the employee's privacy, and she would be contacting Complainant's supervisor in Financial Operations for appropriate action.
Around January 2015, an Agency Accountant filed an EEO complaint and identified Complainant as a responsible management official (RMO). Their employment relationship is unclear. But according to Complainant, she refused her supervisor's alleged request to promote the Accountant or comply with his alleged instruction to categorize the Accountant's work and abilities as "exceptional" to anyone who asked.
The OWD Acting Director assumed her role around January 2015. She wrote that prior to doing so OWD staff routinely gave complainants' entire file to the RMOs. She indicated that after thinking about it, she notified her staff that OWD would not do this anymore - instead, like for any other witness, OWD would only give enough information for the RMO to respond to the allegations.
On February 9, 2015, Complainant's supervisor proposed suspending Complainant for 14 days for improper conduct - grabbing his arm in an unwelcome manner on August 19, 2014, September 24, 2014, and November 6, 2014. On April 6, 2015, the Deputy Managing Director of the Office of the Managing Director sustained the charge, but reduced the discipline to a written reprimand. Therein, the Deputy Managing Director advised Complainant that the reprimand was intended to deter her from engaging in the same or similar behavior in the future, but if additional occurrences of misconduct occurred, she may be subject to progressive discipline, up to and including her removal. The reprimand was slated to be retained in Complainant's official personnel file for one year. Complainant filed a previous EEO complaint which included the proposed suspension matter, which is still pending.
In September 2015, Complainant made a request to OWD Staffer 1 to view the Accountant's complaint file. Staffer 1 allowed Complainant to do so in a conference room. The OWD Acting Director wrote that the next day when she and Staffer 1 were teleworking, Complainant made a request to OWD Staffer 2 to view the Accountant's complaint file. The Acting Director wrote that Staffer 2 initially refused, but gave in when Complainant asserted she saw the file the day before and told her where the file was located on Staffer 1's desk. She wrote that when Staffer 2 contacted her, she told her to take the file back, and did not know then that Staffer 1 previously gave the file to Complainant for viewing.
After reviewing the file, on September 9, 2015, Complainant emailed the OWD Acting Director asking why the Accountant's EEO complaint was not dismissed for failure to timely initiate EEO counseling, contended that the file showed both that the Accountant's complaint was self-serving and frivolous while Complainant's prior pending EEO complaint was valid, and wrote it seemed OWD was eager to dismiss valid complaints (previously Complainant's prior pending complaint was partially dismissed before being fully accepted) while encouraging frivolous complaints.
The same day OWD Acting Director replied by email to Complainant that she had no right to access another employee's file, violated the employee's privacy, and she was going to contact Complainant's supervisor for appropriate action. According to the OWD Acting Director, when she wrote this she believed that since she instructed her staff not to give RMOs complainants'
entire files, she thought Complainant must have misrepresented herself. Complainant questions whether the OWD Acting Director actually changed the file sharing policy.
On September 9, 2015, Complainant replied by email to the supervisor of the OWD Acting Director, with a copy to the latter that when she made her request Staffer 1, Staffer 1 told her she had the right to view the file and it was provided. Complainant contended that the OWD Acting Director knew this on September 3, 2015.
On September 16, 2015, the OWD Acting Director replied to Complainant by email that she spoke with her staff and learned that Complainant did not misrepresent herself when she obtained the Accountant's complaint file, and hence she would not contact Complainant's supervisor or request that action be taken.
CPSC, acting for the Agency, dismissed the complaint before us for failure to state a claim. It reasoned that Complainant was not aggrieved, and that the OWD Acting Director's action did not rise to the level of actionable harassment nor would it reasonably likely deter EEO activity.
On appeal, Complainant argues the merits of her case. Previously, Complainant argued that in light of the warning in her still active reprimand, the threat by the OWD Acting Director to contact her supervisor for appropriate action caused her tremendous anxiety with identified physical symptoms.
In opposition to the appeal, the Agency argues that the FAD should be affirmed.
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See Equal Employment Opportunity Commission EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 5-19 (as revised Aug. 5, 2015); see also Carroll.
The OWD Acting Director's email to Complainant did not cause a present harm or loss - Complainant's supervisor was not contacted. Nor does the email rise to the level of actionable harassment - it was an isolated incident by someone outside the office where she worked, and not severe. Even if Complainant had a strong reaction, this does not change the above analysis. Further, we agree with the Agency's assessment that the email would not reasonably likely deter EEO activity.
Further, we find that Complainant's complaint should be dismissed under 29 C.F.R. � 1614.107(a)(8) - alleging dissatisfaction with the processing of a previously filed complaint. Complainant's complaint regards the actions of the OWD Acting Director in handling the Accountant's complaint, not to any action by her supervisor.
The FAD is AFFIRMED.
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
October 21, 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 Because of a conflict of interest, the Agency transferred Complainant's case to the U.S. Consumer Product Safety Commission (CPSC) for processing, which issued the FAD.
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