01a51924
04-21-2005
Charles A. Brown, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Charles A. Brown v. Department of the Navy
01A51924
April 21, 2005
.
Charles A. Brown,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51924
Agency No. DON-04-47898-10763
DECISION
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. In a complaint dated August 16, 2004, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American) and disability when on or about 9 July 2004, his new
supervisor began singling him out, harassing him and showing favoritism
to the White employees when:
his supervisor kept notes on him and asked him to keep notes on his
daily accomplishments;
his supervisor has displayed a negative attitude toward him but is
pleasant and supportive of the White employees;
3. his supervisor chastised him for having to take two days sick leave
for a cold, while the White employees are treated in a liberal fashion
with respect to their sick leave;
4. his supervisor sent him an e-mail, with a copy to all other
employees, admonishing him for errors contained in one of his e-mails;
on 28 July 2004, his supervisor told him that she didn't have time to
baby-sit him, even though she does not give him assignments consistent
with those of a trainee, but has provided one-on-one discussions to
the White employees;
6. on 26 July 2004, his supervisor insinuated that he lied about being
absent to register for college; and
7. on 30 June 2004, his supervisor told him that he lacked initiative.
Complainant also alleged reprisal for his EEO activity when, on August
23, 2004, near the end of his workday, another supervisor asked him what
he was still doing at work and that he was not going to pay him overtime.
The agency dismissed the complaint, pursuant to EEOC Regulation 29
C.F.R. � 1614. 107 (a) for failure to state a claim. Specifically,
the agency stated that complainant failed to establish that he had
suffered any personal loss or harm with regard to a term, condition,
or privilege of employment.
On appeal, complainant argues that the he does state a claim in that
the conduct complained of was sufficiently severe and pervasive as to
alter the terms and conditions of his employment. Further, complainant
contends that he was subjected to disparate treatment. The agency
reiterates arguments made in its FAD.
We find that the agency improperly dismissed complainant's complaint
for failure to state a claim. In Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993), the Supreme Court found that harassment is actionable,
even absent a claim that an agency's action harmed complainant in a
specific term, condition or privilege of employment, as long as the
complainant can otherwise demonstrate that the conduct was engaged in
with the purpose of creating a hostile work environment, and that the
conduct is sufficiently severe or pervasive as to alter the conditions
of the complainant's employment. A complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant cannot prove a set of facts in support of the claim which
would entitle the complainant to relief. The trier of fact must consider
all of the alleged harassing incidents and remarks, and considering them
together in the light most favorable to the complainant, determine whether
they are sufficient to sate a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
After a careful review of the record, we find that complainant states a
claim of harassment. 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). Here,
the eight alleged incidents of harassment constitute more than a few
isolated incidents. We find that, taken together, the eight incidents
of harassment described by the complainant, if true, were sufficiently
pervasive to unreasonably interfere with complainant's work performance
and render the work environment hostile.
After careful review, we find that complainant has stated an actionable
claim of discriminatory and retaliatory harassment. Accordingly, we
REVERSE the agency's dismissed and REMAND the complaint to the agency,
as framed herein, for further processing as set forth in 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
April 21, 2005
__________________
Date