0120102139
04-11-2012
Pamela Robinson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Pamela Robinson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102139
Agency No. ARARL09JUN02825
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated September 17, 2009, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
On August 28, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American) and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
1. Agency management failed to address an on-going air quality issue in
a timely manner.
2. The EEO Counselor made false statements, tampered with witness
statements and failed to interview two key witnesses during a prior EEO
complaint inquiry.
3. Person X gave a false statement regarding the justification for
processing Complainant’s secret clearance.
The Agency dismissed issue (1) pursuant to 29 C.F.R. § 1614.107(a)(1),
for raising the same matter pending before the Agency or Commission.
Specifically, the Agency stated that issue (1) regarding management's
failure to address on-going air quality issues in a timely manner was
raised previously on July 26, 2006, under Agency No. ARARL06JUN02318 and
again on May 20, 2009, under Agency No. ARARL09FEB00564. Additionally,
the Agency dismissed issues (2) and (3) pursuant to 29 C.F.R. §
1614.107(a)(8), for raising dissatisfaction with a previously filed
complaint under Agency No. ARARL09FEB00564. The Agency also found issue
(3) failed to state a claim.
On appeal, Complainant complains about a statement made by the EEO
Counselor and Person X regarding the processing of her security clearance.
She notes that Person X has given contradictory information regarding
the processing of her security clearance. Complainant also notes there
have been ongoing air quality problems that have never been corrected.
Complainant notes she was denied an air purifier in 2006. She states
she has repeatedly requested assistance with the air quality problems
that were making her ill. She states that it was not until 2009 that
the Agency placed a deflector to deal with the air problem from blowing
on her. Complainant argues that the present issues can be considered
evidence supporting or clarifying her pending or existing complaints.
She also states that the present issues are not fragments of other
complaints but are claims of an unlawful employment practice or policy
for which if proven can be remedied.
In response to Complainant’s appeal, the Agency argues its final
agency decision properly dismissed Complainant’s complaint. The Agency
requests the Commission affirm its final decision.
ANALYSIS AND FINDINGS
At the outset, we note Complainant does not challenged the definition
of the issues listed in the Agency’s final decision.
With regard to issue (1), Complainant alleged that management failed
to address on-going air quality issues in a timely manner. The record
reveals that Complainant raised on-going air quality issues on July 26,
2006, in a formal complaint under Agency No. ARARL06JUN02318 which was
subsequently appealed to the Commission in EEOC Appeal No. 0120082442
(October 17, 2008). Complainant again raised the issue of air quality on
May 20, 2009, in a formal complaint under Agency No. ARARL09FEB00564,
which is currently pending before the Commission under EEOC Appeal
No. 0120120544. The AJ assigned to Agency No. ARARL09FEB00564 noted
that Complainant raised both cold air ventilation issues and claims
of poor air quality. In her decision, the AJ found that Complainant
raised the poor air quality issues in Agency No. ARARL06JUN02318 and
thus, the AJ stated she did not have jurisdiction to review the poor
air quality issue. However, the AJ proceeded to examine the issue of
cold air ventilation concerns and found Complainant failed to show that
she was subjected to discrimination as alleged. Upon review, we find
the Agency properly dismissed issue (1), concerning air quality issues,
for raising the same matter pending before the Agency or Commission.
With regard to issue (2), Complainant alleged that the EEO Counselor
made false statements, tampered with witness statements and failed to
interview two key witnesses during a prior EEO complaint inquiry. In her
formal complaint, Complainant alleged that the EEO counselor discriminated
against her when he failed to interview witnesses that were pertinent to
her prior complaint under Agency No. ARAL09FEB00564. Complainant also
alleged that the EEO Counselor made false and contradictory statements and
tampered with witness statements regarding the agency's justification of
processing her for a security clearance. Upon review, we find the Agency
properly dismissed issue (2) pursuant to 29 C.F.R. § 1614.107(a)(8).
In issue (3), Complainant alleged that Person X gave a false statement
regarding the justification for processing Complainant’s secret
clearance. Upon a review of the record we find that issue (3) was
properly dismissed for failure to state a claim since Complainant failed
to show that she suffered a harm or loss with respect to a term, privilege
or condition of employment with regard to this issue, for which there
is a remedy.1
CONCLUSION
Accordingly, the Agency’s final decision 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
April 11, 2012
__________________
Date
1 The record reveals that in Agency No. ARAL09FEB00564, Complainant
alleged that on January 22, 2009, she learned that Person X purposely
withheld the fact that she had been awarded a security clearance in 2007.
The AJ upheld the Agency’s dismissal of this issue for failure to
state a claim.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2010-2139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102139