EEOC Appeal No. 0120170328
04-10-2017
Josefina P. v. Dept. of Commerce
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josefina P.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120170328
Agency No. 63-2016-00258
DECISION
Complainant filed a timely appeal with this Commission from an Agency final decision, dated September 14, 2016, 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Field Representative at the Agency's Denver Regional Office in Albuquerque, New Mexico. Believing that she was subjected to discriminatory reprisal by her supervisor, Complainant contacted an EEO Counselor. Complainant described her prior protected activity as the filing of an administrative grievance. Informal efforts to resolve Complainant's concerns were unsuccessful.
On August 30, 2016, Complainant filed a formal complaint claiming she was discriminated against when:
1. The Agency engaged in falsification and falsified her records, including her mid-year performance review.
2. The Agency subjected her to a hostile work environment.
On September 14, 2016, the Agency issued a final decision. The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that Complainant did not allege that the Agency's actions were due to any factor prohibited by the EEOC statutes.
Complainant filed the instant appeal.
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
On appeal, Complainant contends she "is struggling to have this statement and decision clarified or defined to her." She believed, from her EEO counseling, that "she had met the criteria and requirements for the issues presented by [her] for a claim to be filed." Complainant reiterates that actions taken by her supervisor over several months, including a Performance Warning Letter.
A review of the instant record reflects that Complainant's basis of reprisal, is not based upon prior protected EEO activity, but instead is based upon the filing of a grievance. Therefore, we find that the Agency properly dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim of reprisal, on the grounds that the complaint did not fall within the purview of the EEO process. Throughout the record, Complainant identified the matter giving rise to the complaint as the filing of a previous grievance. Reprisal was the only basis of discrimination identified by the Complainant, and there is no evidence that she engaged in EEO or any other protected activity. When a complaint of reprisal fails to identify EEO or other protected activity, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4, 1999).
CONCLUSION
The Agency's final decision dismissing the formal complaint for the reason discussed above 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
April 10, 2017
__________________
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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