01a52444_r
04-14-2006
Janice Respress, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Janice Respress v. Department of the Air Force
01A52444
April 14, 2006
.
Janice Respress,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A52444
Agency No. 9R1M05012
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 18, 2005, dismissing her formal EEO
complaint of unlawful employment discrimination brought pursuant to 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. 29 C.F.R. � 1614.405.
On October 20, 2004, complainant initiated EEO Counselor contact, claiming
that on that same day, during a morning meeting, her supervisor (S)
allowed a white male co-worker to �verbally humiliate� her and �gesture a
racial scene� in front of the entire crew. In a statement associated with
the EEO Counselor's Report, complainant further claimed that S improperly
reassigned her, on or about September 24,2004. Complainant also stated
that after the instant EEO activity, S would constantly look over her
shoulder when she logged on to the computer to see what she was doing.
Moreover, also in this same statement, complainant contends that S falsely
accused her of allowing another employee to log her off the computer,
and that he had two witnesses, whom he neither identified nor produced.
Complainant avers that the above described actions created a hostile
work environment, and that she required medical treatment for stress.
Complainant filed the instant formal EEO complaint on December 6, 2004,
claiming discrimination and harassment based on race (African-American)
and sex (female).
In the instant final decision, dated January 18, 2005, the agency
determined that complainant's claim was confined solely to the incident
which purportedly occurred during the October 20, 2004 morning meeting.
The agency then dismissed the complaint for failure to state a claim.
The agency determined that complainant was not aggrieved by this incident
as to a term, condition, or privilege of employment.
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, and as set forth in complainant's appeal statement,
the Commission determines that the agency improperly framed the formal
complaint by finding that it was comprised solely of the purported
incident which occurred on the morning of October 20, 2004. Based on
a fair reading of the record, to include the statement complainant
provided to the EEO Counselor, we find that the instant complaint also
concerns the September 24, 2004 reassignment, as well as the two computer
related incidents which occurred after she contacted the EEO Counselor.
Additionally, we find that complainant's claim is one of harassment.
Therefore, we find that the agency erred in failing to address
complainant's harassment claim in its final decision.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive 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 state a claim. Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Here, the record lacks information regarding the details of exactly
what transpired at the October 20, 2004 morning meeting. However, it
appears that a white male co-worker made public remarks for the purpose
of humiliating complainant, and also made gestures which were perceived
as racially offensive.<1> Complainant contacted an EEO Counselor
that same day. As noted above, as additional incidents of harassment,
complainant also indicates that she was improperly reassigned; and that
subsequent to the October 20, 2004 incident, S continuously scrutinized
her computer use and falsely accused her of a computer use infraction.
Complainant further avers that working in this environment is stressful
and required her to seek medical care.
Taken altogether, with particular consideration of complainant's
claim that the October 20, 2004 incident concerned a racially offensive
gesture, sufficiently severe to cause her to seek EEO counseling shortly
thereafter, we find that complainant has set forth an actionable claim
of harassment. See Cobb, supra.
Accordingly, for the reasons set forth above, we find that the agency
improperly dismissed the captioned complaint. We REVERSE the agency's
dismissal, and REMAND the complaint for processing of the claims, as
re-framed herein, and as set forth in the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims, as re-framed above,
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 14, 2006
__________________
Date
1We advise the agency that prior to issuing
a final decision, it should have requested that complainant provide a
detailed account of what transpired during the October 20, 2004 meeting.
The agency should have also contacted complainant to clarify the claims
she was raising in her complaint, especially given the additional
incidents she describes in statement she provided to the EEO Counselor,
and the vaguely stated claim in the formal complaint.