0120111370
06-28-2011
Kathleen A. Linder, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Kathleen A. Linder,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120111370
Agency No. DON-10-62473-03184
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated December 8, 2010, 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., 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 Biological Scientist, GS-13 at the Agency’s Planning and Management
Branch, Environmental Management Division, Naval Facilities Command,
Naval Weapons Station facility in China Lake, California.
Complainant filed a formal complaint in November 2010 alleging that
she was subjected to a discriminatory hostile work environment and
discrimination based on her sex (female), disability, and reprisal
for prior protected EEO activity under Title VII, the ADEA and the
Rehabilitation Act when:
1. on April 27, 2010, her first line supervisor (S1) initially filled out
a Supervisor’s Statement for Complainant’s application for disability
retirement without including information about her reduced work schedule
or its impact on the organization;
2. on May 3, 2010, S1 filled out the supervisory portion of the Office
of Workers’ Compensation (OWCP) Form CA-2 “Notice of Occupational
Disease and Claim for Compensation” without including information
about her reduced work schedule or its impact on the organization;
3. management denied her request to telework on May 5, 2010, despite a
reasonable accommodation request which allows this practice;
4. on May 6, 2010, during a meeting with S1, Complainant, and her second
line supervisor, S1 argued, berated and raised his voice at Complainant,
which she felt was intimidating;
5. on May 10, 2010, S1 “tried to intimidate” Complainant by raising
his voice and stating they would be driving for an extended period of
time alone the next day to perform work tasks causing Complainant a
“complete anxiety breakdown and panic attack;” and
6. on June 21, 2010, S1 filled out the supervisory portion of OWCP
Form CA-35G “Evidence Required in Support of a Claim for Work-Related
Psychiatric Illness”:
• in a manner she felt to be untrue and hostile and caused her
to be admitted to the emergency room due to the physical and mental
manifestations of an extreme anxiety attack; and
• which included a list of essential functions significantly different
from the list he provided Complainant on January 15, 2010, causing
the “yardstick” against which she is measured to change without
informing her.
Prior to filing the instant November 2010 formal complaint, the parties
entered into a settlement agreement on April 23, 2010, which they amended
on April 29, 2010, closing a prior EEO matter. Under the settlement,
the Agency agreed, in relevant part, to:
1. release Complainant from her contractual repayment obligations related
to her relocation/incentive service agreement;
2. S1 would complete the Supervisor’s Statement in Complainant’s
disability retirement application no later than April 28, 2010;
3. S1 would complete the Supervisor’s Report section of Complainant’s
OWCP Form CA-2 within 10 calendar days of being provided Complainant’s
completed application;
4. S1 would complete the Supervisor’s portion entitled “From Employing
Agency” items 7 through 12 of Complainant’s OWCP Form CA-35, within
60 calendar days of being provided Complainant’s completed portion; and
5. permit Complainant to reduce her hours to a specified part-time
schedule for up to six months.
The settlement agreement provided that any claim of breach by Complainant
must be raised in writing with an EEO Officer or Deputy EEO Officer.
On July 12, 2010, Complainant contacted an Agency EEO Specialist alleging
breach of the settlement agreement and discrimination. As part of
this contact, on July 16, 2010, Complainant submitted a letter alleging
that S1 breached the settlement agreement based on the content of what
he wrote in the supervisor’s portions of Complainant’s disability
retirement application and OWCP forms. She contended the writings were
discriminatory, and that new acts of discrimination occurred after the
settlement agreement was signed, raising claims 3, 4 and 5. In a final
determination dated August 10, 2010, the Agency found that it was in full
compliance with the settlement agreement by completing supervisor portions
of the disability retirement and OWCP forms within the agreed timeframes.
Complainant decided not to appeal this decision.
Instead of further pursuing the breach claim, on August 9, 2010,
Complainant initiated contact with an EEO counselor in connection
with the instant complaint. In its December 8, 2010 FAD, the Agency
dismissed the complaint. It dismissed claims 1 through 5 for failure to
timely initiate EEO counseling. It reasoned that Complainant did not
initiate EEO counseling within 45 calendar days of when these events
occurred. The Agency also dismissed the entire complaint, 29 C.F.R. §
1614.107(a)(1), for stating the same claim that was pending before or has
been decided by the Agency. It found that the complaint was identical
to the events surrounding the execution of the settlement agreement on
which Complainant filed a notice of breach which was already adjudicated,
i.e., the same matters had already been decided by the Agency.
On July 16, 2010, Complainant wrote that she was hospitalized on June
22, 2010, has not worked since that time, and was taken off work by her
doctor for the next 60 days.
CONTENTIONS ON APPEAL
Complainant argues that the date she initiated contact with an EEO
counselor should be deemed as July 12, 2010, when she contacted an Agency
EEO Specialist alleging breach and discrimination. She argues that the
EEO Specialist is logically connected to the EEO process. She contends
that the settlement agreement is invalid for lack of consideration.
She argues that by taking the position that the settlement agreement only
requires S1 to complete his portion of the disability retirement and OWCP
forms, without supporting her applications, the settlement agreement
is void for lack of consideration because the Agency did nothing more
than is otherwise required for any federal employee. She contends that
accordingly, the Agency’s August 10, 2010 FAD has no legal consequence
on the complaint now before the Commission.
In opposition to the appeal, the Agency argues that Complainant made an
informed choice to pursue a breach claim on July 12, 2010, and hence
her contacting an EEO counselor on August 9, 2010, to raise claims of
discrimination should be deemed initial EEO contact with regard to her
complaint. It argues that given this later date, Complainant failed to
timely initiate EEO counseling on claim 6, but even with the earlier date
claims 1 through 5 were untimely counseled. The Agency argues that the
entire complaint should be dismissed because it relates to Complainant’s
dissatisfaction with the execution of the settlement agreement. It argues
Complainant already filed a notice of breach, that it previously issued
a FAD finding no breach, and Complainant improperly chose to file a new
complaint on matters nearly identical to those in her notice of breach.
The Agency argues that the settlement agreement is valid and was fully
executed. It argues that claims 3 and 5 fail to state a claim because
Complainant was not aggrieved by these matters.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §
1614.105(a)(1) & .107(a)(2).
Under 29 C.F.R. § 1614.504, which regulates how a claims of breach are
processed, allegations that subsequent acts of discrimination violate a
settlement agreement shall be processed as a separate complaint under
§ 1614.106 or § 1614.204, as appropriate, rather than § 1614.504.
The Agency followed the proper procedures when it processed
Complainant’s notice of breach by issuing a FAD making a determination
on the matter. But the Agency failed to also follow the requirement in
29 C.F.R. § 1614.504(c) to process allegations 1 through 6, which were
in the notice of breach and occurred after the execution of the settlement
agreement, as a new complaint. Complainant alleged incidents 1 through 6
were discriminatory, they occurred after the execution of the settlement
agreement, and the Agency believed there were no terms in the settlement
agreement prohibiting such alleged incidents. Accordingly, we deem July
12, 2010, to be the date Complainant initially contacted an EEO counselor.
A hostile work environment claim is comprised of a series of separate
acts that collectively constitute one unlawful employment practice.
National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at
115. A hostile work environment claim will not be time barred if all
acts constituting the claim are part of the same unlawful practice
even if some component acts of hostile work environment fall outside
the statutory time period so long as an act contributing to the claim
falls within the filing period. Id. at 117.
We affirm the Agency’s dismissal of claim 3 for failure to timely
initiate EEO counseling. This is a discrete act, and Complainant’s
initiation of EEO counseling on July 12, 2010, was beyond the 45 calendar
day time limit.1 We need not determine the timeliness of the remainder
of the claims since they are subject to dismissal for other reasons.
As an initial matter, we disagree with Agency’s finding that the
entire complaint should be dismissed for stating the same claim that
was pending before or decided by the Agency. The complaint regards
new claims of discrimination following the execution of the settlement
agreement, not breach claims. Accordingly, the matters are not the same.2
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(Sep.n22, 1994); Lingad v. United States Postal Service, EEOC Request No.
05930106 (June 25, 1993). 29 C.F.R. § 1614.107(a)(1). The proper forum
for Complainant to raise his challenges is within that proceeding itself.
It is inappropriate to attempt to use the EEO process to collaterally
attack actions which occurred during disability retirement process and
OWCP process. This rule has been applied to claims that an Agency made
incorrect or false submissions in the Office of Personnel Management
disability retirement process and the OWCP workers’ compensation
process. Dixon v. United States Postal Service (Pacific Area), EEOC
Appeal No. 0120080278 (Feb. 4, 2010) (OPM disability retirement process);
Hogan v. Department of the Army, EEOC Request No. 05940407 (Sept. 29,
1994) (OWCP workers’ compensation process).
Applying the above case law, we find that claims 1, 2 and 6 fail to
state a claim. 29 C.F.R. § 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
We agree with the Agency’s argument on appeal that claim 5 fails
to state a claim, and find the same is true of claim 4. Claim 4 was
about a meeting on S1’s completion of the disability retirement and
OWCP paperwork. At the meeting S1 allegedly argued to Complainant that
her doctor did not have authority to dictate to the Agency her schedule,
a reference to reduction to part-time. The Agency, however, had already
agreed to the part-time schedule, and Complainant does not contend it
was changed. In fact, Complainant writes the Supervisor conceded the
point in amended workers’ compensation paperwork on May 11, 2010.
Claim 5 regards Complainant being told she would have to work directly
with S1 for the better part of a day on May 10, 2010. We find that
these claims were not sufficiently severe or pervasive to alter the
conditions of Complainant’s employment. We also find that they would
not reasonably likely deter EEO activity.
Accordingly, the FAD is AFFIRMED.
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
June 28, 2011
__________________
Date
1 We disagree with the Agency’s argument that claim 3 does not state
a claim. It states a claim because Complainant contends she was denied
reasonable accommodation of her disability on May 5, 2010.
2 Complainant did not appeal the August 10, 2010 FAD finding no breach,
so the issue of breach is not before us. She argues that the settlement
agreement is invalid, vitiating the August 10, 2010 FAD’s legal
consequence on her discrimination complaint. We find the August 10,
2010 FAD has no legal consequence on her complaint because it addressed
a breach claim, not one of discrimination.
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0120111370
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111370