0120073776
11-14-2007
Bernard Adams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Bernard Adams,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073776
Agency No. ARCEMEMP02AUG06561
DECISION
Complainant filed a timely appeal with this Commission from a final agency decision, dated August 3, 2007, dismissing his 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
During the relevant time, complainant was a deckhand on the Motor Vessel Mississippi ("M/V Miss") in the Revetment Unit of the Operations Division, U.S. Army Corps of Engineers, in the Memphis District.
In August 2002, another deckhand obtained the signatures of twenty employees, including complainant, claiming they were subjected to discrimination by JB1 on the bases of race (African American) and color (black). Thereafter, a pre-complaint document, identified as a "group complaint" was submitted. The EEO Counselor assigned to the potential class conducted individual counseling sessions with each putative class member, including complainant. Informal efforts to resolve the group's concerns were unsuccessful. On November 25, 2002, a formal complaint was filed on behalf of the proposed class, identifying twenty-one potential members, alleging a hostile work environment. The agency accepted the complaint, and identified the issue as follows:
on August 23, 2002, JB made racially derogatory comments and/or threats of bodily harm, and as in previous incidents, management failed to take corrective action.
In a decision issued on September 28, 2006, an EEOC Administrative Judge (AJ) denied class certification. The AJ found that the prerequisite of numerosity had not been met. The AJ noted that while "some of the proposed class members were making a concerted effort to keep each other informed about everything that happened to any of them", other proposed class members "admitted having no knowledge about events in August 2002." Further, the AJ found that the potential class did not provide sufficient evidence to meet the commonality and typicality prerequisites. The class complaint was dismissed and the agency was ordered to process the claims as individual complaints.
On January 9, 2007, complainant filed his formal complaint, which the agency contends was identical to those filed by nineteen other complainants. The agency requested additional information. Specifically, the agency requested complainant to describe in detail how he was personally and individually affected by the events alleged in the formal complaint.
By letter dated April 27, 2007, complainant's attorney stated that "although [complainant] did not witness the events occurring on August 23, 2002, he did hear and witness on different occasions [JB] making racial and/or derogatory comments to the black men on board the Motor Vessel." The attorney noted, for example, that on August 12, 2002, complainant witnessed JB pointing to a co-worker at a meeting and say "we need to get rid of all the niggers." The attorney noted further that JB purportedly came directly before an employee, called him a "low down black nigger", slid a rolling chair at him, and threatened "I will kick your ass when we get outside this gate." Complainant contends that "the ongoing threats, racial slurs and derogatory comments made by [JB]", which have gone unstopped by management, cause him to be "fearful for his life" and sleep on the vessel with his door locked.
In its August 3, 2007, decision, the agency framed the complainant's formal complaint as follows:
On August 12, 2002, a hostile work environment was created by [JB] when complainant witnessed a verbal confrontation between [JB] and another employee.
The agency dismissed the complaint for failure to state a claim and on the alternative grounds of untimely EEO Counselor contact. The agency did not provide any specific analysis for its dismissal for failure to state a claim, pursuant to 29 C.F.R. 1614.107(a)(1).
Regarding the dismissal on the grounds of untimely EEO Counselor contact, the agency found that complainant first raised the August 12, 2002 incident in his clarification letter dated April 27, 2007. According to the agency, complainant should have raised the matter when he filed the "group complaint" in September 2002 or during the individual interview with the EEO Counselor in November 2002. The agency found that complainant waited over four years after what it determined was a discrete act, in August 2002, to raise the incident with the EEO Counselor.
On appeal, complainant's attorney provides one statement in support of numerous individual appeals. The statement identifies a paragraph for each employee, describing the allegedly harassing conduct by JB that they either experienced or observed. Regarding complainant, the appeal statement notes that when complainant was interviewed on November 15, 2002, complainant stated he did not personally hear the August 23, 2002 incident, "[n]or did he personally have any other references by anyone or management making racial and/or derogatory comments." Complainant, however, argues that "the hostile environment aboard the vessel . . . interfered with his ability to work and his work environment." Finally, complainant contends that the agency's misdefined the issue. Specifically, complainant argues that the claim addresses whether agency officials created a racially hostile environment on the M/V Mississippi by returning JB (after he was previously removed for racially inappropriate statements), allowing him to break the rules, and mishandling the black crew members' complaints. Complainant asserts that "it is terrible to have racial slurs flying but when management allows such actions it becomes a hostile environment."
In response, the agency argues that complainant's hostile work environment claim must be evaluated solely on complainant's individual claims and not those of any other complainant. According to the agency, complainant's individual EEO Counselor report and April 27, 2007 letter reflect that he has not claimed to have personally witnessed the incidents on August 2, 2002; August 6, 2002; August 10, 2002; August 23, 2002; and the August 29, 2002 meeting. The agency argues that because the statements and actions alleged were not directed to complainant, and were not personally witnessed by him, complainant failed to state a claim. The agency also argues that complainant's claims are insufficiently severe or pervasive to alter the conditions of his employment. The agency asserts that even though complainant stated that he was fearful of JB, complainant "does not connect these feelings to this [August 12, 2002] incident he witnessed . . . ." Moreover, the agency contends that the claims are too vague and general to state a claim.
The agency further argues that the instant complaint should be dismissed on the grounds of untimely EEO Counselor contact. The agency states that complainant believed he was discriminated against when, on August 12, 2002, he witnessed a confrontation between JB and a co-worker. The agency argues, however, that complainant did not raise the incident with the agency within forty-five days of the date that it occurred. According to the agency, after the alleged incident, complainant: (a) in August 2002, signed a form to be included with any EEO action or grievance filed against JB; (b) in September 2002, filed an informal complaint through the class agent; (c) in November 2002, participated in EEO counseling regarding his claims; (d) in November 2002, filed a formal complaint through the class agent; (e) in January 2007, filed an individual formal complaint; and (f) April 2007, submitted a clarification letter. The agency argues that it was not until his April 2007 letter that complainant "finally remembered that he had witnessed this incident and claimed that he had been discriminated against because of it." The agency argues that complainant did not refer to the incident during informal counseling or in his complaints.
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).
As an initial matter, the Commission determines that the agency mis-defined the instant complaint. We find that a fair reading of the formal complaint reflects a broader claim of a hostile work environment, rather than a singular claim simply regarding the August 12, 2002 incident. Instead, the record contains several examples of racist comments and threats of violence by JB. JB allegedly said that all blacks are no good, that the agency needed to get rid of all blacks, and that he hated blacks. Further, he called the crew names such as "nigger" and "big lips". JB also purportedly threatened to hit a crew member with a block of wood he was holding, and ran after another individual, also threatening to hit him. The complaint states that "[t]he crew lived in constant fear of what hateful and humiliating acts this drunken racist would inflict on us."
In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's 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 should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Even if harassing conduct produces no tangible effects, such as psychological injury, a complainant may assert a Title VII cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). Also, 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, 510 U.S. at 23.
In this case, we find that while JB's remarks and threats were not specifically directed to complainant, he has presented an actionable hostile work environment claim. The Commission has previously noted that the use of the racial epithet "nigger" is a "highly charged epithet" which "dredge[s] up the entire history of racial discrimination in this country." See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, the fact that complainant was not present when the remarks were made is not dispositive. See Barber, Eley, Powell, and Johnson v. Department of the Navy, EEOC Request Nos. 05A50657, 05A50771, 05A50972, 05A50973 (The Commission on its own motion reversed the dismissal of Powell and Johnson, finding that the combined claims of racially offensive remarks, the use of the term "nigger", and disparate treatment in work assignments was sufficient to state a claim) citing Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (racial harassment not directed specifically at plaintiff, but part of plaintiff's work environment, could be actionable). We find that the events described in the record are sufficiently severe and pervasive to have created an abusive environment and interfered with complainant's work performance. The instant complaint states a claim of discrimination.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The agency determined that the instant formal complaint is comprised of one discrete act, that occurred on August 12, 2002, and that complainant did not raise this matter until years later. However, as noted above, we determine that the agency erred in focusing on simply the August 12, 2002 confrontation. Instead, complainant has presented a claim of an ongoing hostile work environment that addressed incidents that occurred within forty-five days of his initial EEO Counselor contact. We note, moreover, that the record reveals that on December 20, 2006 the agency provided complainant with a Notice of Right to File a Formal Complaint, following the AJ's decision denying class certification and ordering the agency to process the members as individual complaints. In the correspondence attached to the Notice, the agency stated "your initial contact with an EEO Official was on October 9, 2002." Consequently, we find that the agency's decision to dismiss complainant's individual complaint, pursuant to 29 C.F.R. � 1614.105(a)(1) was improper.
Accordingly, the agency's decision to dismiss complainant's complaint was improper, and is hereby REVERSED. The complaint as redefined herein, is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims 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 (K0501)
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 19848, Washington, D.C. 20036. 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 (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 (R0900)
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 (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
November 14, 2007
__________________
Date
1 The record reflects that JB was the First Pilot of the M/V Miss, and was second-in-command and in charge whenever the Captain was on leave.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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