0120112248
02-24-2012
Brenda Grogan, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Brenda Grogan,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120112248
Agency No. 9R1M11067
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 23, 2011, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Fabric Worker at the Agency’s Robins in Robins, Georgia.
Complainant indicated that, on November 9, 2010, Complainant allowed a
co-worker (Co-Worker) to use her computer and email address to request
a reasonable accommodation from Management. Complainant was well aware
of the Co-Worker’s situation and had assisted him on the matter.
In response to the email, Management told Complainant’s supervisor
(Supervisor) about the email and suggested to the Supervisor that
Complainant had violated the Privacy Act and/or the Health Information
Privacy Protection Act (HIPPA).
Believing that she was subjected to discrimination, Complainant contacted
an EEO Counselor. On January 26, 2011, when the matter could not be
resolved informally, Complainant filed a formal complaint alleging that
the Agency subjected her to harassment on the bases of sex (female),
disability (physical), and reprisal for prior protected EEO activity
under Section 501 of the Rehabilitation Act of 1973 when: on November 9,
2010, Management conveyed a veiled threat to Complainant by telling the
Supervisor that Complainant allowed the Co-Worker to use her computer
to send an email to request a reasonable accommodation.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency indicated that Complainant has
not shown that the Supervisor took any adverse action against Complainant.
Further, the Agency found that Complainant has not shown that she suffered
a personal loss or harm regarding a term, condition or privilege of
her employment. As such, the Agency dismissed the complaint.
Complainant appealed. On appeal, Complainant’s representative
(Representative) asserted that Complainant has standing to allege
discrimination against the Agency for the threat. Complainant also
asserted that the management officials involved have also taken action
against two other co-workers and the Representative. The Representative
claimed that the case at hand involves the Agency’s attempt to
retaliate against Complainant and deter her from protected EEO activity
and “protests of reasonable accommodation.” The Representative
argued that the threat and “intentional infliction of harm” would
cause financial devastation which would deter any reasonable person.
As such, the Representative asked that the Commission reverse the
Agency’s dismissal.
The Agency argued that Complainant has not shown that she was harmed
or suffered a loss with respect to a term, condition or privilege of
employment. The Agency noted that the remark or comment alone is not
sufficient to render Complainant aggrieved for purposes of Title VII.
Further, the Agency indicated that the single act was not sufficient to
state a claim of harassment. As such, the Agency requested that the
Commission affirm its decision to dismiss the complaint pursuant to 29
C.F.R. § 1614.107(a)(1).
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.
29 C.F.R. § 1614.107(a)(1). As noted above, Complainant has not shown
that the alleged veiled threat constituted an Agency action with respect
to a term, condition or privilege of employment.
Regarding complainant's claim of reprisal, the Commission has stated
that adverse actions need not qualify as "ultimate employment actions"
or materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410
(Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998)). Instead, the statutory retaliation clauses prohibit any adverse
treatment that is based upon a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. Id.
We note that in the complaint at hand, Complainant alleged discrimination
and harassment when Management informed the Supervisor that Complainant
may have violated the Privacy Act and/or HIPPA. Complainant asserted
that Management’s action constituted a veiled threat. However, the
issue before the Commission is whether the referral of the alleged
violations by Complainant as raised by Management to the Supervisor
states a claim of discrimination based on Complainant’s sex, disability
and/or reprisal.
The Commission has held that where Complainant has been referred for
an internal investigation, and there has been no investigation and
no criminal prosecution, that the referral alone did not constitute
a denial of some personal right or an imposition of a burden or
obligation. Ricciardo v. Dep’t of the Treasury, EEOC No. 01966777
(Feb. 5, 1998), request for reconsideration denied, Request No. 05980416
(July 17, 1998). The record, in the present case, reveals that no
investigation was done, nor was there any criminal prosecution, thus,
we find that Complainant has failed to show that she was suffered a harm
with regards to a term or condition of her employment.
Regarding complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id. We note that Complainant has asserted that
Management’s actions constituted libel and slander and would deter her.
However, a fair reading of the complaint is Management referring to the
Supervisor a potential violation of rules and regulations. We find that
such a claim is not one that would reasonably deter Complainant or others
from engaging in protected activity.
Complainant also asserted that she was subjected to harassment. The
Commission has held that where, as here, a complaint 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 the complainant’s employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). Complainant raised the single event in support
of her claim of harassment. It is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents will
not be regarded as creating a discriminatory work environment. See James
v. Dep’t of Health and Human Serv., EEOC Request No. 05940327 (Sept. 20,
1994). We find that complainant failed to allege a claim of harassment
CONCLUSION
Accordingly, we AFFIRM the Agency’s dismissal of Complainant's complaint
on the grounds of failure to state a claim.
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 (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 (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 24, 2012
__________________
Date
2
0120112248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112248