0120161344
05-10-2016
Vickey S.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vickey S.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120161344
Agency No. 2016-26572-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 4, 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.
BACKGROUND
During the period at issue, Complainant worked as an Air Traffic Controller at the Agency's Napa Air Traffic Control Tower (ATCT) in Sacramento, California.
On December 29, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of sex and in reprisal for prior EEO activity.
In the instant final decision, the Agency determined that the formal complaint was comprised of the following two claims:
1. in October 2015 and November 2015, Complainant was inappropriately questioned as a witness in an Accountability Board investigation initiated by a co-worker against a manager; and
2. on December 15, 2015, after she injured her toe at work, Complainant's manager told her that her CA-1 form needed to be typed and not handwritten and responded to her angrily when she told her that she needed immediate medical attention.
The Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Regarding claim 1, the Agency found that the matter raised therein was a collateral attack on the Agency's Accountability Board process. The Agency stated that Complainant should have raised her allegations through the Accountability Board process, not through the EEO process.
The Agency further found that in regard to claim 2, Complainant was not aggrieved. Specifically, the Agency determined that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The instant 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
A review of the instant formal complaint and EEO Counselor's Report reflects that Complainant addressed more matters than the claims identified by the Agency in its final decision. In her formal complaint, Complainant stated "I am being retaliated against from a previous sexual harassment investigation that occurred in 2011. Statements from this prior investigation (which were confidential) are being used in an investigation at APC taking place now...my reputation is being damaged because of this."
The record contains a copy of attached email correspondence dated December 28, 2015, which Complainant sent to the District Manager. Therein, Complainant notified the District Manager that on October 8, 2015, the FAA training manager and the union president came to her work facility to conduct an Accountability Board investigation and "no-one from the tower was briefed or notified on what was going on." Complainant stated that on October 6, 2015, she was called by her manager for the Accountability Board interview with the FAA training manager and union president. Complainant stated that she was told by the officials that she was being questioned "just as a witness. I knew [union president] from my personal Accountability Board investigation. I filed against my instructor approximately 5 years ago at Sacramento tower and [union president] was on my Accountability Board broad at that time." Complainant further stated that at the beginning, the questions were "mostly in general about the tower environment. Toward the end there were few questions about me and [former instructor] that made me uncomfortable because those were inappropriate questions and I let the AB Accountability Board team know about it."
Further, Complainant stated that few days after the interview, the facility was searched by the manager "with a statement that searches would continue until the contraband was found. It was very intimidating to come to work knowing there was a consistent search against us." Complainant stated that on October 14, 2015, she was called to the manager's office to go over her statements. Complainant stated that the FAA manager "said that before we would go over that they had few more questions for me that just came out. The questions they asked me [were] very sexually explicit and very similar to the statements made years ago at the Accountability Board investigation at SMF about my instructor but changed the name to [Agency official]. I said to the Accountability Board team that they used SMF Accountability Board investigation questions and inserted [former instructor's] name everywhere. I also told them that I felt like the investigation was about me and [former instructor] which was untrue and outrageous."
Complainant stated that following the October 14, 2015 meeting, she contacted the union Vice President to express her concerns and "what I was told by [union vice president] that another girl had filed the sexual harassment allegations against my supervisor and it had nothing to do with me. But, the questions were not about that girl but about me, and I did not file anything." Complainant stated that on October 20, 2015, she was approached by her supervisor in the presence of other Air Traffic Controllers and asked to remove her briefcase. Complainant stated that the supervisor "had a list of my personal items and the documents in the briefcase given to him by [manager]. He called her office from the tower cab to let her know that he had passed her request to me about removing my briefcase and the documents listed in the briefcase by her. She said that the list of the documents in the briefcase was for the supervisors information only."
Complainant stated that on December 15, 2015, she fell down and injured her toe and when she reported to work on December 16, 2015, she could hardly walk. She informed her supervisor and manager about the incident the day before. Complainant stated that her supervisor printed out a CA-1 form for her to fill out but when she handed the form to the manager, the manager told her that it had to be typed up or it would not be accepted. Complainant stated that she then worked on typing the form and the pain in her toe became unbearable. Complainant stated that when she informed the manger she needed medical attention because "at that point I could not even walk in the cab. [Manager's] response was a very angry statement that I was very unprofessional top let her know about this just at that point...I feel like I am being retaliated against by my manager a second time and this will never stop. I feel unsafe to work with her in this environment."
Moreover, Complainant, on appeal, states that she is subjected to ongoing harassment. For instance, Complainant states on numerous occasions, the manager "made statements that she knew about my previous AB investigation form Sacramento tower (SMF). I have an affidavit from my coworker saying that she witnessed her saying this." Complainant further states "I have been damaged emotionally, as now my peers and [supervisors] view me in a negative light. I have been damaged professionally, as now I have an unprofessional stigma that will follow me. The agency has allowed a manager ([manager]) full control to retaliate against me and harass me through this fraudulent investigation."
Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that she is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (sexual harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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 (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 (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 Complainants 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
May 10, 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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