James P. Popalarski, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 9, 2000
01a01277 (E.E.O.C. Jun. 9, 2000)

01a01277

06-09-2000

James P. Popalarski, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


James P. Popalarski, )

Complainant, )

)

v. ) Appeal No. 01A01277

) Agency No. 00-2033

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

On November 24, 1999, complainant filed a timely appeal with this

Commission from an agency decision pertaining to his complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

The agency characterized complainant's complaint as alleging that he

was discriminated against in reprisal for prior EEO activity as he was

harassed and subjected to a hostile work environment when the Audit

Manager issued him a slanderous and defamatory email concerning a �GPRA�

class on August 12, 1999.

Pursuant to EEOC Regulations, the agency dismissed complainant's claim

for failure to state a claim. Specifically, the agency determined that

complainant was not aggrieved because he did not suffer a personal loss

or harm with respect to a term, condition or privilege of employment,

and that the email complainant received was not sufficiently severe

or pervasive to create a hostile work environment for a reasonable

person.

In his complaint, complainant asserts that �the defaming email...[was]

one of many incidents of disparate treatment and reprisal actions taken.�

Complainant specifically asserts that during a previous assignment to

the Audit manager his requests for training were never approved, he was

required to travel out of town without adequate notice, his performance

appraisal was downgraded, his leave requests were not approved, he was

required to take sick leave instead of annual leave, and that subsequent

to the email in August 1999, he was sent further condescending messages.

On appeal, complainant also asserts that because the August 12, 1999 email

was forwarded to management, with whom he has now lost credibility, the

Audit manager has �set the stage� to again lower his performance rating.

A claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). In determining whether a harassment complaint states a

claim, the Commission has repeatedly examined whether a complainant's

harassment allegations, when considered together and assumed to be true,

were sufficient to state a hostile or abusive work environment claim. Id.

Additionally, 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); See Cobb, supra.

In his complaint and on appeal, complainant alleged a series of events

occurring during the periods he was assigned to a named supervisor.

Specifically, complainant alleged that he was subjected to discrimination

and harassment which created a hostile work environment. Instead of

treating all of these events as incidents of the claim of harassment,

however, the agency looked only at one incident concerning a defamatory

email. Thus, the Commission finds that the agency improperly treated

complainant's complaint in a piecemeal fashion, when a fair reading of the

record as a whole, including his complaint, reveals that complainant is

alleging a pattern of ongoing harassment and a hostile work environment.

See Drake v. Department of the Air Force, EEOC Request No. 05970689

(March 29, 1999); Meaney v. Department of the Treasury, EEOC Request

No. 05940169 (November 3, 1994). Consequently, when complainant's claims

are viewed together in the context of his complaint of harassment, they

state a claim and the agency's dismissal of the complaint for failure

to state a claim was improper.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED. The case is REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

June 9, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.