0120110490
12-02-2011
Sheila D. Bush, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Sheila D. Bush,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120110490
Agency No. BOP-2010-0619
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 30, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Human Resources Specialist at the U.S. Penitentiary in Atlanta, Georgia.
On July 22, 2010, Complainant filed an EEO complaint alleging that the
Agency subjected her to discrimination and a hostile work environment in
reprisal for her prior protected EEO activity when: between February 2009
and July 16, 2010, Complainant was subjected to harassment in the form
of a supervisor (S1) sharing personal information from her application
with another staff member, unwelcome negative and threatening verbal
comments, yelling, threatening hand gestures by another staff member,
and becoming the subject of an internal investigation.1
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that Complainant
alleged that she was retaliated against because she and S1 did not
communicate with one another and S1 is the subject of an investigation
for releasing information about her to union officials and staff.
Furthermore, in Complainant’s August 13, 2010 response to an inquiry,
she explained that her allegation of reprisal-based discrimination was
the result of her reporting S1 to a management official for allegedly
sharing personal information from her application. The Agency found that
neither explanation identified any prior EEO participation or opposition
to discriminatory practices of the Agency. As there was no evidence
in the record that Complainant had any prior protected EEO activity,
the Agency dismissed the complaint for failure to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that several staff members are constantly
harassing and bullying her. In addition, Complainant alleges that
she has been retaliated against since she reported S1 for breaching
personnel confidentiality. Further, Complainant contends that she is
seeking counseling and feels threatened by her co-workers. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
The Commission determines that the Agency correctly dismissed
Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. There is no evidence in the
record that Complainant engaged in any protected opposition to
discrimination. Complainant alleged that she was retaliated against
because she and S1 “do not communicate with one another; she is
currently being investigated for releasing information about me to
union officials and staff.” There is no evidence that Complainant
participated in any protected EEO activity or opposed a discriminatory
practice by the Agency. Thus, after a review of the record, the
Commission finds that Complainant failed to identify a basis within
the purview of the Commission’s regulations. 29 C.F.R. § 1614.101.
Accordingly, the Agency's final decision dismissing Complainant's
complaint 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 (Nov. 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
December 2, 2011
Date
1 The Commission notes that Complainant raised additional bases of
discrimination during EEO counseling; however, she effectively abandoned
those claims by not alleging them in her formal complaint. See Williams
v. Dep’t of the Navy, EEOC Appeal No. 0120055162 (Oct. 17, 2007),
Davis v. U.S. Postal Serv., EEOC Appeal No. 01A61515 (July 19, 2006);
Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999).
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0120110490
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110490