Complainant,

v. 

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151317

Agency No. 14-65236-03429

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 23, 2015, dismissing a formal 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

During the period at issue, Complainant worked as a Scientist at the Agency's Space and Naval Warfare Systems Center Atlantic (SPAWAR) facility in North Charleston, South Carolina.  

On December 9, 2014, Complainant filed the instant formal complaint.  Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, disability, and age when:


a. during a meeting with her competency leadership on August 8, 2014, she became aware of "baseless claims" made by her supervisor about her performance and disciplinary matters, and she believes these "baseless claims" had an impact upon her competency leadership to remove her as the Integrated Project Team (IPT) lead for the Commercial Services Integration Product Team (CSI IPT) on July 17, 2014;

b. in February 2014, she attended a meeting for IPT leads and sub-portfolio leads and asked the supervisor for a network activity to record her time, and he did not give her one, resulting in her feeling from his point on, she was on the "bad list;"

c. beginning in March 2014, she asked the supervisor to copy her competency leadership on emails to avoid communication issues;

d. on July 10, 2014, during a performance review, she was told the supervisor had her written up because of "positional deference;" and

e. on an unspecified date, she offered to provide the supervisor documentation of her hearing impairment to explain she was not yelling at him, and he hung up the telephone. 

It its January 23, 2015 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.  The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Agency improperly dismissed the instant formal complaint 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).

A review of the instant formal complaint and EEO Counselor's Report reflects a series of alleged incidents that include Complainant being harassed by the supervisor.  In her formal complaint, Complainant stated that in February 2014, the supervisor "questioned my tone of voice toward him at a meeting.  I explained to him that I have a hearing disability and that I sometimes have difficulty controlling the volume and tone of my voice.  After that time, [supervisor] made fun of my disability, including making jokes about my hearing aid devices at a staff meeting."  

Further, Complainant stated in regard to her 2014 performance appraisal, the supervisor "continued his harassing behavior by providing the only negative commentary on my performance.  This negative commentary led to being ranked below average ranking despite letters of commendation from multiple high ranking officials in the Navy (including DoN CIO), Marine Corps, and Internal SPAWAR leadership and winning the Government Computing News (GCN) Award for Top 10 Most Important Technology Projects in the Federal Government."  

As a remedy, Complainant requested that she would like to be reinstated to her IPT Lead position "with all the work I built for the command back under the management power of that position.  I would like [supervisor] removed from any ability to manage or affect my work in any way.  I would like my attorney's fees paid.  I would like to be paid damages equal to the amount of salary I lost or will lose because of the discriminatory actions of [supervisor].  I would like my pay adjusted to the correct the level that it would have been if not for the [supervisor's] performance review.  I want the performance review corrected or removed from my record." 

Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that she is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). 

We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.

ORDER

The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108.  The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final.  The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time.  If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory.  The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant.  If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order.  29 C.F.R. § 1614.503(a).  The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action."  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).  If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint.  However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.  In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission.  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.  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

July 8, 2015
__________________
Date

2
0120151317





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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0120151317