0120080951
04-24-2008
Joan E. Freed, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Joan E. Freed,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080951
Agency No. 07-68335-02474
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated November 2, 2007, dismissing her 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed for failure to state a claim.
During the relevant period, complainant was employed as a Quality
Assurance Specialist at a New Jersey facility of the agency. On July
19, 2007, complainant initiated contact with an EEO Counselor alleging
that the agency subjected her to hostile work environment harassment
on the bases of sex (female) and age (over 40) when, that day, a
Supervisory Engineer (who was not in complainant's supervisory chain)
(S1) accused her of taking someone else's keys, chased her for the
keys, seemed to attempt to grab complainant's arm, and told her that she
could not leave the room. In a formal complaint dated October 11, 2007,
complainant alleged that S1 subjected her to a hostile work environment
and, to support her claim, detailed various incidents between April 2005
and 2007. Complainant alleged that S1 verbally attacked her regarding
a lawsuit, bypassed her work inspections, watched her and listened to
her conversations, belittled her work, and attempted to blame her for
the actions of his subordinate. Complainant stated that she contacted
an EEO Counselor regarding the prior incidents previously.
In its November 2 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The agency stated that complainant failed to allege conduct that
is sufficiently severe or pervasive to create a hostile work environment.
The agency identified the July 19 incident only.
The instant appeal from complainant followed. On appeal, complainant
stated that the July 19 incident is not the only harassing incident
although the agency characterized it as such; and that she informed an
EEO Counselor of S1's harassing incidents in February or March 2007
and on March 21, 2007, April 6, 2007, August 3, 2007, August 6, 2007
and August 31, 2007. Further, complainant stated that she also alleged
reprisal for prior EEO activity as a basis. Finally, she added that S1
attempted to assault her.
EEOC regulations require the dismissal of complaints that fail to state a
claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, a complainant
must allege harm 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). Hostile work environment
harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).
The Commission determines that taking all complainant's allegation
together, and assuming them to be true, she has alleged a viable claim of
harassment/hostile work environment. Moreover, we find that complainant
asserts the basis of reprisal for prior EEO activity and that the agency
actions alleged were of a type reasonably likely to deter complainant
or others from engaging in protected activity. As such, we find that
complainant has stated a claim of harassment based on reprisal. We note
that the incidents that were not raised in the counseling for the instant
complaint but that were alleged in the instant formal complaint should
be used as evidence in support of the harassment claim.
Accordingly, we REVERSE the final agency decision dismissing complainant's
complaint and REMAND the harassment claim consistent with this decision
and the Order below.
ORDER
The agency is ordered to process the remanded hostile work environment
harassment claim in accordance with 29 C.F.R. � 1614.108 et seq.
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 24, 2008
__________________
Date
2
0120080951
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080951