0120065003
10-30-2007
Sandra F. Mims, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Sandra F. Mims,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200650031
Agency No. DON 06-65888-00802
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 9, 2006, 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. In her complaint,
complainant alleged that she was subjected to discrimination based on her
race/color (black), sex (female), disability (knee), age (born in 1955),
and reprisal for prior protected EEO activity, when:
1. in October or November 2005, I asked my immediate supervisor to change
my working hours, and he denied the request,
2. in October or November 2005, I asked my second level supervisor for
reassignment to another workgroup, and he denied the request,
3. in October or November 2005, my second level supervisor placed a
computer generated picture of my co-worker 1 on my cubicle wall, and
after I removed it, the second level supervisor asked "what happened to
the picture,"
4. on two occasions in October or November 2005, co-worker 2 told me
"here comes your boyfriend" when co-worker 1 was around,
5. in 2005, my immediate supervisor sent white employees to Air Speed
training classes before sending me, resulting in me not attending the
Air Speed class until December 2005,
6. on several occasions during January 2006, my immediate supervisor
criticized my work performance and compared it unfavorably with prior
employees,
7. despite a problem with my knee, on January 17, 2006, my immediate
supervisor did not assist when I was using a pallet jack,
8. around the time I was placed on light duty due to my knee on January
17, 2006, co-worker 2 disparagingly remarked to another "I'm going to
have to get a doctor's excuse so you can help me with things,"
9. on January 19, 2006, there was an ISO audit of work by me and co-worker
3 (Hispanic),
10. at unspecified times, my immediate supervisor held work related
meetings from which I was excluded,
11. at an unspecified time my immediate supervisor initially disapproved
my request to change my leave category from annual to sick, but after
seeking union assistance, the leave was rectified. I believe the
disapproval was in reprisal for complaining to EEO as it took three to
four weeks to correct the leave.
The agency dismissed the complaint for failure to timely initiate
contact with an EEO counselor. It reasoned that complainant did not
initiate contact with an EEO counselor until March 13, 2006, beyond the
45 calendar time limit to do so. 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) and .107(a)(2).
Under 29 C.F.R. � 1614.105(a)(2), an agency shall extend the 45 day time
limit to initiate EEO counseling where an individual shows that she was
not notified of the time limit and was not otherwise aware of it.
On appeal, complainant contends that she initiated contact with an EEO
specialist on February 15, 2006, not March 13, 2006. In support of her
appeal, she submits a partial handwritten Dispute Resolution Worksheet
indicating EEO contact on February 15, 2006. It contains a handwritten
number, apparently representing complainant's facility or region.
The agency complaint file has a complete Dispute Resolution Worksheet
indicating EEO contact on March 13, 2006. In reply to complainant's
appeal, the agency EEO complaints processing manager for the Southwest
Region questions whether the matters in the February 15, 2006, worksheet
were ever pursued. He notes that the worksheets are normally filled
out on a computer by an intake representative in the field and forwarded
electronically to an EEO office. The February 15, 2006 worksheet does
not indicate it was forwarded in the space provided to do so.
The agency also argues that the claims in the February 15, 2006,
worksheet are not the same as the above defined claims. The February
15, 2006, worksheet identifies February 14, 2006, as the alleged
date of discrimination, and vaguely identifies the discrimination
as working outside her job description, not being properly trained,
and accommodation. The record reflects complainant was accused of not
processing trouble calls on February 14, 2006, and she attributed this
to some of the above factors. The agency argues the matters in the
February 15, 2006, worksheet were abandoned issues.2
Complainant was represented by counsel below. As argued by the agency,
complainant indicated in her complaint that her initial EEO contact was
on March 13, 2006, and on appeal submitted a 2006 document where she wrote
"I filed an EEO complaint in March of this year."
On appeal, complainant does not reply to the agency's argument.
Regardless of whether she contacted an EEO specialist on February 15,
2006, the weight of the record shows she did not do so in connection
with her formal complaint. The February 15, 2006, worksheet was
never finalized, suggesting abandonment of the alleged contact, and
significantly, complainant conceded elsewhere that her initial EEO
contact was on March 13, 2006. Accordingly, we find complainant
initiated contact with an EEO counselor on March 13, 2006.
Complainant contends on appeal that she was unaware of the 45 day time
limit to initiate EEO counseling. In reply, the agency argues that EEO
posters printed in two colors stating the 45 calendar day time are posted
on 24 official bulletin boards throughout the depot where complainant
works, and provides a copy of the poster with the time limit and a list
of where they are posted. Complainant does not reply to this. Given all
this, we find complainant had constructive knowledge of the 45 day time
limit to make EEO contact. 3 Accordingly, we affirm the FAD's dismissal
of claims 1 through 9 for failure to timely contact an EEO counselor.
We find, however, that the FAD's dismissal of claims 10 and 11 for
failure to timely initiate EEO contact is not supported by the record.
The record does not reflect when the events in claim 10 occurred,
and complainant alleged the event in claim 11 occurred after her EEO
contact.
The FAD dismissed claims 3, 4, 5, 6, 8, 9, 10 and 11 for failure to
state a claim. 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. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
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, supra.
Claims 3, 4, 6 and 8, regard alleged pranks, disrespectful actions,
and criticism of complainant's work by various people. In determining
whether alleged harassment states a claim, the Commission has repeatedly
examined whether the harassment claims, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. See Estate of Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (February 26, 1999). In
determining whether an objectively hostile or abusive work environment
existed, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). Consistent with the Commission's policy and
practice of determining whether a complainant's harassment claims
are sufficient to state a hostile or abusive work environment claim,
the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995). Unless the
conduct which complainant alleged is very severe, a single incident or
isolated incidents generally will not create a hostile environment. See,
e.g., Scott v. Sears, Roebuck and Co., 798 F.2d 210, 214 (7th Cir. 1986)
(offensive comments and conduct of coworkers were 'too isolated and
lacking the repetitive and debilitating effect necessary to maintain a
hostile environment claim'). The FAD relied on standards similar to the
above in dismissing these claims for failure to state a claim. On appeal,
complainant states her immediate supervisor complained many times about
her work. But in her complaint, she wrote the criticism occurred three
or four times in January 2006. We agree with the FAD's finding that
claims 3, 4, 6, and 8 do not rise to the level of actionable harassment,
and also find they would not reasonably deter protected activity.
In dismissing claim 5, the FAD reasoned that the training was universally
given to everyone, including complainant, and the order in which employees
were trained was immaterial. Regarding claim 9, the FAD found that while
an audit was conducted, no adverse action was taken and complainant did
not even allege her audited work was criticized. Regarding claim 10, the
FAD reasoned that while complainant did not attend certain meetings, she
did not articulate any harm from this. The immediate supervisor explained
the meetings concerned projects that did not involve complainant.
Regarding claim 11, the FAD found that complainant's request to change
annual leave to sick leave was ultimately granted, and complainant did not
allege any harm by the delay. On appeal, complainant does not respond to
these findings. As complainant was not harmed by the events in claims 5,
9, 10, and 11, the FAD's dismissal of these claims is affirmed. We also
find that these events would not reasonably deter protected activity.
Complainant's complaint is dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 30, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 Complainant received a "discussion" on February 23, 2006, where the
February 14 and other incidents were raised. In her February 23, 2006,
email reply to the discussion, she defended herself, and wrote "all this
will come out in my EEO complaint". Complainant referenced the trouble
calls matter in her complaint. The agency did not define this matter
as a claim and complainant did not oppose this on appeal. The March
15, 2006, worksheet identifies the February 23, 2006, discussion as
the alleged incident, but complainant does not raise the discussion in
her complaint.
3 In Sanda F. Mims v. Department of the Navy, EEOC Appeal No. 01933956
(November 23, 1993), the EEOC reversed a procedural dismissal of an appeal
filed by complainant. Involvement in the EEO process tends to show a
complainant is aware of EEO time limits. However, this case is very old.
It does signify, however, that complainant was at least generally aware
of time limits to contact an EEO counselor.
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0120065003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120065003