01996137_01996140
04-04-2001
Richard A. Sumner, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Richard A. Sumner v. Department of the Navy
01996137 et al
April 4, 2001
.
Richard A. Sumner,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01996137
01996140
01997278
01A00542
01A03259
Agency Nos. DON-99-00183-006
DON-99-00183-008
DON-99-00183-059
DON-99-00183-070
DON-00-00183-043
DECISION
Complainant timely initiated appeals from final agency decisions (FAD)
concerning his complaints 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. In his complaints, complainant alleged that he was
discriminated against on the bases of race (Caucasian) and/or reprisal
(prior EEO activity) when:
1. in Appeal No. 01996137: on January 15, 1999, complainant was falsely
accused of going through a co-worker's desk and stealing her credit card;
complainant was locked out of the Outpatient Pharmacy because the cypher
code had been changed; and a Pharmacy Technician (PT-1) failed to follow
complainant's advise and hired another individual for the �F� shift;
in Appeal No. 01996140: on March 8, 1999, an individual who complainant
named in a prior EEO complaint of sexual harassment forwarded an email
which made complainant look bad and, on April 9, 1999, information was
passed to the Captain that complainant did not meet the requirements
for Total Parenteral Nutrition (TPN) and Kinetics;
in Appeal No. 01997278: on May 11, 1999, complainant was spoken to in
a very belligerent manner by another PT (PT-2) after he questioned the
technician on how she had mixed a product;
in Appeal No. 01A00542: A co-worker sent an e-mail to complainant and
his supervisor concerning an antibiotic procedure which complainant
felt was meant to make him look bad; an insubordinate was hostile toward
complainant concerning his preparation of a neonatal TPN in the presence
of the TPN technician and made threats to complainant concerning the
TPN preparation;
in Appeal No. 01A03259: A Subordinate (Subordinate 1) informed a
co-worker that she could perform her duties better when under the
supervision of another PT (PT-3); A Contract employee made statements to
a former pharmacy employee that complainant needed psychological help;
A Pharmacy Technician (PT-4) told the Division Officer that complainant
would not check orders as was requested by PT-4; PT-4 told other
co-workers that complainant was mean and to watch out for complainant
when working for him; Division Officer informed complainant that he had
to go through the chain-of-command in order to deal with his concerns
with contract employees; the Inpatient Pharmacy Supervisor made shift
changes to complainant's staff without discussing the changes with
complainant; and the Division Officer counseled complainant in front
of his subordinates.
The agency issued FADs dismissing the complaints raised above pursuant
to 29 C.F.R. � 1614.107(a)(1). In relevant part, EEOC Regulation 29
C.F.R. � 1614.107(a)(1) provides 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).
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it as
such. Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
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.
In his complaints, complainant alleged a series of events which allegedly
occurred from January 1999 through December 1999. Specifically,
complainant alleged that he was subjected to harassment which created a
hostile work environment based on his prior EEO complaint.<1> Instead
of treating these events collectively as a claim of harassment, the
agency looked at them individually. Thus, we find that the agency acted
improperly by treating matters raised in complainant's complaint in a
piecemeal manner. See Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994) (an agency should not ignore the "pattern
aspect" of a complainant's claims and define the issues in a piecemeal
manner where an analogous theme unites the matter). Consequently,
when complainant's claims are viewed in the context of complainant's
complaint of harassment, they state a claim and the agency's dismissal
of those claims for failure to state a claim was improper.
Accordingly, the agency's FADs dismissing these claims on the grounds
of failure to state a claim are REVERSED and REMANDED. Furthermore, the
Commission finds that the agency should consolidate these claims with any
other claims still pending before the agency into one claim of harassment.
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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 4, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record indicates that complainant filed a sexual harassment
complaint against his Supervisor. Complainant alleges in all of his
formal complaints that the harassment is part of a pattern of retaliation
by his Supervisor or condoned by his Supervisor to create a hostile work
environment so difficult that complainant will leave the agency.