0120141417
10-16-2014
Complainant, v. Cheryl A. LaFleur, Acting Chairman, Federal Energy Regulatory Commission, Agency.
Complainant,
v.
Cheryl A. LaFleur,
Acting Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120141417
Agency No. EEO-2014-MAL-001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 30, 2014, dismissing a formal 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
During the period at issue, Complainant worked as a Trial Attorney at the Agency's Office of Administrative Ligation (OAL) in Washington, D.C.
On December 5, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of disability, age, and in reprisal for prior EEO activity when:
1. management improperly attributed her improved performance rating with the implementation of a Performance Improvement Plan (PIP);
2. an IT contractor expanded the distribution of email communications with her to additional Commission staff;
3. her supervisor admonished her, and encouraged her to be respectful to IT staff;
4. management "unilaterally" enrolled her in National Institute for Trial Advocacy (NITA) Federal Court Jury Trial Training during 2013 the Veterans' Day holiday weekend. Complainant alleged that management was aware that some work days would exceed eight hours and she claimed management failed to provide her with adequate notice of the training;
5. management ignored her requests for disenrollment in NITA training and required her to: (10) provide proof of medical appointments from September 2013-October 2013, and (2) provide that her medical care was necessary;
6. management ignored her requests for information regarding Commission compliance with the Privacy Act and maintenance of her private healthcare information;
7. Commission staff "evidenced interest and predilection to impugn [Complainant's] integrity" by calling her "self-righteous" when she reported agency-wide double pay;
8. Commission staff unlawfully established different protocols for interactions between her and IT staff including: (1) a witness requirement during all her interactions with IT, and (2) reported delays in her IT assistance;
9. management's failure to acknowledge and "compliment her work product during an October 30, 2013 Mobile-Sierra presentation to senior staff; and
10. the Commission's EEO process is unfairly prejudicial and interferes with her ability to vindicate her EEO rights.
The Agency dismissed all the allegations raised in the formal complaint on various procedural grounds. In a footnote, the Agency appears to argue that Complainant has abused the administrative EEO process, because in prior complaints, Complainant had previously, and repeatedly, filed similar or identical allegations as those raised in the instant formal complaint.
The Agency expressly dismissed the entire complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The Agency also dismissed claims 1 and 2 for stating the same claims that were raised in prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency merely stated that claims 1 and 2 were previously dismissed in Complainant's last complaint by making a reference to an Agency letter dated November 20, 2013.
The instant appeal followed.
ANALYSIS AND FINDINGS
Same claims (claims 1 and 2)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency.
The Agency improperly dismissed claims 1- 2 for stating that they are identical to the claims in her last complaint by making a reference to an Agency letter dated November 20, 2013. The record, however, does not contain a copy of the November 20, 2013 letter as identified by the Agency in its final decision. We further note that the Agency did not identify Complainant's prior complaints which it claimed were identical to claims 1 and 2 of the instant complaint. We cannot determine whether claims 1 and 2 are identical to the claims in unspecified prior complaints. Clearly, it is the burden of the Agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Failure to state a claim
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the instant complaint for failure to state a claim. A fair reading of the complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from 2003 through present. Specifically, Complainant stated that she was "subjected to a hostile harassing work environment since I engaged in protected activity as an EEO complainant at FERC. My allegations are predicated on FERC's course conduct that, among other things, has targeted me for discrimination in retaliation for my protected activity and evidences an animus to me because of my protected activity."
As a remedy, Complainant requested "all appropriate remedies/and relief are requested, the granting of requested accommodations for my disabilities, compensatory damages, non compensatory damages, all costs and fees (including attorneys' fees, consultancy fees), reassignment to a mutually agreed position outside of OAL/not being subordinate to [named employee], expungement of PIP related documents...appropriate credit for work performed, timely effective IT assistance, appropriate treatment of information about me, cessation of Agency actions violative of my rights/cessation of actions fostering the harassing hostile work environment about which I complain."
Complainant also requested that the Agency does not require her "to attend training that does not accommodate my disabilities..." These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Moreover, we note that other claims raised as part of the harassment claim (claims 5, 6 and 8) can be reasonably construed as a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer has an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g., Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
Further, we determine that the record does not support a dismissal for abuse of process. The Agency's determination that Complainant has repeatedly filed similar claims in other complaints, without more, does not support a dismissal on these grounds.
Complainant, moreover, has filed prior complaints which appear to relate to the broader claim of ongoing retaliatory harassment. The Commission recently found, for example, that a formal complaint identified as Agency No. EEO-2013-MAL-002 was not comprised of simply one claim but described ongoing and continuing harassment, and specifically made reference to another formal complaint, identified as Agency No. EEO-2013-MAL-003. Consequently, to avoid the fragmentation of Complainant's hostile work environment claim, the Commission ordered the Agency to consolidate Agency Nos. EEO-2013-MAL-002 and EEO-2013-MAL-003, to the extent practicable, for continued processing. See Complainant v. Federal Energy Regulation Commission, EEOC Appeal Nos. 0120140345 and 0120140824 (October 14, 2014).
We reach the same conclusion in the instant appeal. When viewed in the context of Complainant's larger complaint of harassment, the events state a claim and the Agency's dismissal was improper. Therefore, the specific incidents presented in this complaint should be consolidated with the earlier events remanded for processing to the extent practicable.
Accordingly, we REVERSE the dismissal of claims 1 - 2 for stating the same claim and dismissal of the formal complaint in its entirety for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following action:
The Agency is ordered to process the remanded claims (harassment/hostile work environment and failure to provide reasonable accommodation) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall, to the extent practicable, consolidate the instant formal complaint with Complainant's other harassment complaints for continued processing (Agency Nos. EEO-2013-MAL-002 and EEO-2013-MAL-003). 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
October 16, 2014
__________________
Date
2
0120141417
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
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8
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