Francesv.Ransom, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 24, 1999
01973205 (E.E.O.C. Feb. 24, 1999)

01973205

02-24-1999

Frances V. Ransom, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Frances V. Ransom v. Department of the Treasury

01973205

February 24, 1999

Frances V. Ransom, )

Appellant, )

) Appeal No. 01973205

v. ) Agency Nos. 94-4146

) 94-4201

Robert E. Rubin, ) 94-4244

Secretary, ) 95-4002

Department of the Treasury, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated January 10, 1997, which the agency issued pursuant to

EEOC Regulation 29 C.F.R. �1614.107(a) and (e). The Commission accepts

the appellant's appeal in accordance with EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues raised in this appeal are whether the agency properly

dismissed 14 of the appellant's allegations for failure to state a

claim and portions of three allegations on the ground that they were

preliminary steps to taking a personnel action.

BACKGROUND

According to the final agency decision, the agency terminated the

appellant's employment, effective August 17, 1996, after the appellant had

been on leave since June 7, 1994, and in leave without pay status since

July 18, 1994. The allegations at issue in this appeal involve alleged

discrimination based on the appellant's disability (manic-depressive

disorder) and retaliation (prior EEO activity) during a period of time

(from March 15, 1994, through August 15, 1994)immediately preceding and

following the purported beginning of the appellant's lengthy absence

from work.

The decision defined 22 allegations raised by the appellant in four

complaints which the agency consolidated for decision. The decision

dismissed allegations 1-6 of complaint number 94-4146; allegations 1, 5,

and 6 of complaint number 94-4201; allegations 5, 6, and 8 of complaint

number 94-4244; and allegations 1 and 2 of complaint number 95-4002

for failure to state a claim. The decision also dismissed allegation

2 of complaint number 94-4201, portions of allegation 6 of complaint

number 94-4201, and allegation 8 of complaint number 94-4244, on the

ground that they were preliminary steps to taking a personnel action,

that is, the appellant's termination. The decision also found that these

same allegations were inextricably intertwined with, and subsumed by,

the appellant's removal from agency employment. The decision indicated

that the appellant could raise these allegation as pretext arguments in

her removal complaint (agency number 97-4025M).

On appeal, the appellant contends that the agency's practice of

unnecessarily demanding medical information from individuals with

disclosed disabilities violates the Rehabilitation Act, as amended in

1992. The appellant also contends that her complaint states claims

of adverse employment actions, including the denial of assignments,

increased scrutiny and monitoring of work performance, singling her

out for assignment to a supervisor known for disciplining disfavored

employees, and removing personal items (including EEO materials) from

her work area. The appellant further contends that her allegations state

a claim of ongoing disability-related harassment.

ANALYSIS AND FINDINGS

The proper focus for dismissals of individual EEO complaints under 29

C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved

due to an unlawful employment practice in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;

the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et

seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,

as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &

Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because

Title VII's prohibition of discrimination with respect to an employee's

"terms, conditions, or privileges of employment" includes benefits that

are part of an employment contract and benefits which an employer chooses,

but is not required, to provide its employees).

However, even where a complaint does not challenge an agency action

or inaction regarding hiring, termination, compensation, or any other

specific term, condition, or privilege of employment, the complaint may

still state a claim if the complaint allegations are sufficient to state

a hostile or abusive environment claim. Id., citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if it

is sufficiently severe or pervasive to alter the conditions of the

complainant's employment). A complainant is not required to use any

specific words or phrases to state a hostile or abusive work environment

claim. Instead, a complainant must allege facts which, when considered

together and assumed to be true, indicate that the complainant may have

been subjected to discriminatory harassment that was sufficiently severe

or pervasive to alter the conditions of his or her employment. Cobb,

supra.

In addition, a complaint may state a retaliation claim if the alleged

statements or adverse treatment, if not fully remedied and prevented from

recurring, would likely deter future protected activity by the complainant

or other employees. See Section 8 of the Commission's new Compliance

Manual on "Retaliation;" and 29 C.F.R. �1614.102(a)(3) and (6).

A complainant does not have to prove his or her claim in order to

state a claim under 29 C.F.R. Part 1614. Jackson v. Department of the

Air Force, EEOC Request No. 05960524 (April 24, 1997). Accordingly,

the Commission repeatedly has reversed agencies' dismissals for failure

to state a claim where the agency based the dismissal on its view of the

ultimate merit of the complaint allegations. See, e.g., Franz v. Treasury,

EEOC Request No. 05950734 (April 29, 1996) (agency's argument that the

complainant was not disparately treated went to the merit of his claim);

Ernst v. Treasury, EEOC Request No. 05950131 (March 7, 1996) (the agency's

argument that the denied detail was to a lower-grade position with fewer

responsibilities and less opportunities for promotion went to the merits

of the complaint); Hagan v. Department of Veterans Affairs, EEOC Request

No. 05920709 (January 7, 1993) (agency wrongfully dismissed allegation

of disparate treatment in the payment of licensing fees based on the

ground that the agency could not pay an employee's licensing fees); Cann

v. United States Postal Service, EEOC Request No. 05920861 (December 31,

1992) (agency wrongfully dismissed allegation that the agency failed

to upgrade an employee to full-time regular status on the ground that

there were no full time positions available to him under the terms of

the collective bargaining agreement); Ferns v. Department of the Army,

EEOC Request No. 05920597 (September 10, 1992) (agency's argument that

the complainant was ineligible for position goes to the merits of the

complaint).

After reviewing the entire record, the Commission finds that the agency

improperly dismissed 12 allegations based on its view of the ultimate

merit of the complaint allegations: allegations 1 (assignments), 2

(inappropriate discussion of her medical condition), 3 (request for

medical documentation), 4 (increased scrutiny of job performance), and 5

(exclusion from CPA certification activities) of complaint number 94-4146;

allegations 1 (removal of personal items from the appellant's work area),

5 (requesting additional medical information), and portions of 6 (in May

and June 1994, isolating her from her co-workers, scrutinizing her work

more closely, communicating with her in a threatening and unprofessional

manner) of complaint number 94-4201; allegations 5 (restricting access

to the Personnel Office, vacancy announcements, personnel regulations

and the agency manual), 6 (Personnel Office employees refused to assist

her), and 8 (in June and July 1994, communicated with her in a threatening

and unprofessional manner) of complaint number 94-4244; and allegation 1

(on August 15, 1994, refused admission to the Personnel Office to submit

an application for reassignment) of complaint number 95-4002.

The Commission finds that the appellant's claims regarding requests

for medical information and wrongful disclosure of medical information

states claims in part because Congress amended the Rehabilitation Act,

effective October 29, 1992, to make the nonaffirmative action employment

discrimination standards of the American with Disabilities Act, 42

U.S.C. 1121 et seq., applicable to the Rehabilitation Act. See Robinson

v. United States Postal Service, EEOC Request No. 05940034 (September 16,

1994) at n.1; and Lembitz v. United States Postal Service, EEOC Request

No. 05931150 (July 28, 1994). Therefore, the Commission's regulations

in 29 C.F.R. Part 1630 are applicable to disability claims under 29

C.F.R. Part 1614, arising after October 29, 1992. In addition, the

Commission finds that the appellant's allegations of disparate treatment

in access to Personnel Office services state claims of disparate treatment

regarding a privilege of employment.

The Commission further finds that the agency wrongly considered allegation

6 of complaint number 94-4201 and allegation 8 of complaint number 94-4244

as discrete allegations of harassment, instead of addressing whether the

appellant's allegations, when viewed together and assumed to be true,

state a hostile work environment claim. Applying this standard, the

Commission finds the appellant has alleged facts which, if proven true,

indicate that she may have been subjected to discriminatory harassment

that was sufficiently severe or pervasive to alter the conditions of

her employment.

In finding that the appellant's consolidated complaints state a hostile

work environment claim, the Commission has considered allegation 2 of

complaint number 94-4201, portions of allegation 6 of complaint number

94-4201, and allegation 8 of complaint number 94-4244. Allegations

of allegedly harassing actions may not be dismissed pursuant to 29

C.F.R. �1614.107(e)on the ground that the actions were merely preliminary

to a personnel action because the allegedly harassing actions have already

adversely affected the complainant).See Bruce D. Henry v. United States

Postal Service, EEOC Request No. 05950229 (November 22, 1995).

The Commission affirms the agency's dismissal of allegation 6 of complaint

number 94-4146 and allegation 2 of complaint number 95-4002. These

allegations concern the agency's alleged failure to provide adequate

counseling on the appellant's informal complaints but do not state

claims of discrimination or retaliation regarding a term, condition,

or privilege of employment.

Finally, the Commission agrees with the agency that allegation 6

(refusal to provide the appellant with reasonable official time and

resources to prepare for and meet with EEO Officials) of complaint number

94-4201 does not state a claim of employment discrimination. However,

the appellant is entitled to a reasonable amount of official time, if

otherwise on duty, to prepare her complaints and to respond to agency and

EEOC requests for information. See 29 C.F.R. �1614.605(a). A complainant

does not have to prove that the denial of requested official time was

discriminatory. Therefore, the Commission finds that allegations 6 of

complaint number 94-4201 states an official time claim. Accordingly,

the Commission reverses the agency's dismissal of that allegations.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of allegation 6 of complaint number 94-4146 and allegation 2 of

complaint number 95-4002; REVERSES the agency's dismissal of all other

allegations; and REMANDS these allegations to the agency for processing

as ORDERED below.

ORDER

(1) The agency is ORDERED to forward a copy of the record, including all

relevant information pertaining to the appellant's official time requests,

to the Commission's San Francisco Office. The letter transmitting the

record shall request that the remanded allegations be assigned for

hearing. The letter shall also request that the remanded allegations

be consolidated with allegations currently pending in the San Francisco

Office under assigned case numbers 370-97-2488X (agency number 94-4201)

and 370-97-2489X (agency number 94-4244), if possible.

(2) The agency shall send copies of the transmittal letter to the

appellant, the appellant's attorney, and the Compliance Officer as

referenced below.

(3) The agency is ORDERED to complete the actions described in paragraphs

1 and 2 of the Order within thirty (30) calendar days of the date this

decision becomes final.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 (Z1092)

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:

Feb 24, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations