0120114175
02-10-2012
____________, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
____________,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120114175
Agency No. 2011-23899-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 11, 2011, dismissing her complaint of
unlawful employment discrimination in violation of 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 EEO Assistant at the Agency’s Office of Civil Rights in College
Park, Georgia. On June 28, 2011, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases
of disability (severe migraines and bipolar disorder), age (40), and
reprisal for prior protected EEO activity under the Age Discrimination
in Employment Act of 1967 and Section 501 of the Rehabilitation Act of
1973 when:
1. In 2010, the first time Complainant called in sick, she spoke to her
co-workers, Complainant’s supervisor (Supervisor) called Complainant
back and asked her why she was not coming into work.
2. In April 2010, the Supervisor critiqued Complainant when she referred
to a coworker as "Hollywood.” However, Complainant indicated that
the Supervisor used sex-based terms such as “Baby,” “Divas,”
and “Sweetie” to refer to her staff.
3. During the same time period, the Supervisor then informed Complainant
that she made an inappropriate comment which she found to be sexual
in nature.
4. In April 2011, an ITT Technical Institute outreach event that had
been assigned to Complainant was reassigned to a coworker and the Human
Resources Department to handle.
5. On March 23, 2011, a coworker told Complainant that the Supervisor
spoke to the Co-worker about Complainant’s performance and threatened
to terminate Complainant if her performance did not improve.
6. On March 30, 2011, during a staff meeting, the Supervisor had
two of Complainant’s coworkers update the staff about their work
assignments/meetings. Complainant was passed over during the meeting.
7. On May 12, 2011, the Supervisor spoke to Complainant in a demeaning
manner because she was upset about a box that contained cardholders.
8. On May 19, 2011, while Complainant was out of the office on sick
leave, the Supervisor called her at home because her personal mail had
been delivered to the workplace. The Supervisor asked Complainant why
she didn’t have the mail sent to her home address. The Supervisor
advised Complainant that she was violating government policies and
procedures by receiving personal mail at the workplace.
9. On May 23, 2011, while Complainant was out of the office on sick leave,
the Supervisor called Complainant. During the conversation, Complainant
inquired about requesting a reasonable accommodation. The Supervisor
then asked Complainant why she needed a reasonable accommodation.
10. On June 28, 2011, on Complainant’s second day back from an extensive
sick leave, the Supervisor asked Complainant to run complaint reports
but gave her an unreasonably short timeframe to accomplish the task.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency noted that the incidents raised
by Complainant did not rise to the level of harassment. Specifically, the
Agency found that the events were not sufficiently severe or pervasive
to alter the conditions of Complainant’s workplace. In addition,
the Agency noted that in event (5), Complainant was not present when
the comment was made about her performance. The Agency indicated
that Complainant received the information second hand. As such, the
Agency concluded that the events were not sufficient to state a claim
of harassment.
Complainant appealed. Complainant raised events that were not
specifically raised in her formal complaint. Further, she asserted that
she was subjected to harassment and restating the events listed in her
formal complaint in support of that claim. Because of the events raised
by Complainant, she asserted that the Supervisor created a hostile,
intimidating and retaliatory work place. The Agency requested that the
Commission 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 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 (April
21, 1994). If complainant cannot establish that she is aggrieved,
the agency shall dismiss a complaint for failure to state a claim.
The Commission has held that where, as here, Complainant 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 Complainant’s employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission
finds, contrary to the Agency’s final decision, that Complainant’s
allegations concerning the Supervisor are sufficient to state a claim of
a hostile work environment. We note that Complainant alleged a series
of events including tangible employment actions in support of her claim
of harassment. Taking the events as a whole, we find that Complainant has
shown that the Supervisor’s conduct was sufficiently severe to alter
the conditions of Complainant’s workplace. Therefore, we determine
that the Agency’s dismissal of the complaint pursuant to 29 C.F.R. §
1614.107(a)(1) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter for further processing
in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. 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 (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
February 10, 2012
__________________
Date
2
0120114175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114175