0120113178
11-21-2012
Tina Louise C. Ambrose, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Tina Louise C. Ambrose,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120113178
Agency No. 201123910RITA01
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated June 2, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Economic Analysis Division, Volpe Center facility in Cambridge, Massachusetts. On April 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black) when:
1. From December 2009 or shortly thereafter, Complainant's Supervisor has subjected her to harassment, culminating with placing Complainant on a Performance Improvement Plan (PIP) in March 2011.
The Agency characterized the claim differently, finding that Complainant was only addressing being placed on a PIP, and dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds that the action was a proposed action.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that an Agency shall dismiss any portion of a complaint that alleges "that a proposal to take a personnel action or other preliminary step to taking a personnel action, is discriminatory." The following explanation appeared in the Federal Register regarding 1614.107(e), the previous number for this regulation.
We intend the section to require dismissal of complaints that alleged discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a pan of any official file on the employee. If the individual alleges, however, that the preliminary step was taken for the purpose of harassing the individual for a prohibited reason, the complaint cannot be dismissed under this section because it has already affected the employee.
Section by Section Analysis, 57 Fed. Reg. 12642, 12643 (April 10, 1992).
A review of Complainant's Formal and Informal Complaints indicate that Complainant alleges that she incurred harassment that began "soon after" she was transferred to the Economic Analysis Division in December 2009. In addition to being placed on a PIP, Complainant also alleges her Supervisor complains about her work, makes her repeat tasks she has already completed, yells at Complainant and subjects her to unreasonable work assignments in an effort to encourage Complainant to quit. As such Complainant's allegation about being placed on a PIP is part of a larger claim alleging harassment and should not have been dismissed for addressing a proposed action.
With regard to Complainant's harassment claim, however, the Commission finds that the complaint fails to state a claim under the EEOC regulations because complainant failed to show that she was subjected to unwelcome verbal or physical conduct involving her protected classes, that the harassment complained of was based on her statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has she shown she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's final decision dismissing complainant's complaint is affirmed, albeit on different grounds.
CONCLUSION
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
November 21, 2012
__________________
Date
2
0120113178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113178