0120152397
12-17-2015
Stanton S.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stanton S.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152397
Agency No. ARBELVOIR15APR01179
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 2, 2015, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director, Strategy and Innovation at the Agency's Northern Regional Medical Command (NRMC) facility in Fort Belvoir, Virginia.
On May 15, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination, ongoing harassment, and a hostile work environment on the bases of race (African-American), color (unspecified) and sex (male). He alleged discrimination, when:
1. On May 5, 2015, Complainant's supervisor sent him an email "scolding" him to close out an impending matter, shortly after Complainant made contact with the EEO office;
2. On April 3, 2015, Complainant was called stupid by the Office of the Surgeon General Headquarters personnel;
3. On March 26, 2015, former employees of Complainant's department, now working elsewhere within NRMC, attempted to realign his work responsibilities;
4. On December 14, 2014, Complainant expressed concern about two [Caucasian female] employees who were making it difficult for Complainant to serve as the command's Lean Six Sigma Deployment Director and "meddling" in Complainant's affairs.
Complainant alleged that he had been subjected to the hostility for years (since 2012). On December 14, 2014, Complainant expressed his concern "to leadership" regarding what he perceived to be discrimination and a hostile work environment.
He contacted the EEO Counselor on March 25, 2015 and April 4, 2015. According to the EEO Counselor's Report, Complainant alleged race discrimination against him by the Chief of Clinical Operations, the Assistant Chief and a Work Force Analyst. All three are Caucasian. During a meeting that occurred on March 26, 2015, the Chief of Clinical Operations allegedly tried to realign Complainant's duties to get Complainant fired and wanted Complainant to fail. He claimed that management was trying to render him ineffective by taking over his work to give the work to another employee, who is a Caucasian female. He claims that, after he made contact with the EEO Office, his supervisor sent him a "scolding" reminder to close out a task, even though the due date had not yet passed. The Counselor's report also stated that Complainant claimed that two Caucasian female employees, who formerly reported to him, were harassing him and undermining his authority to the point that it interfered with his job performance. He told the EEO Counselor that "Leadership has enabled/ tolerated the hostile environment." Complainant claims that others outside his protected group were not treated with the same hostility and disrespect. He states he brought the matter of being called stupid to the attention of the EEO Counselor.
The Agency issued a final decision dismissing the entire complaint. The Agency stated that, in his formal complaint, Complainant alleged retaliation for prior protected EEO activity and a hostile work environment because of his race. The Agency dismissed claims 1, 3 and 4 for failure to state a claim. The Agency reasoned that Complainant had not suffered a harm or loss because "there is nothing about the content or the tone of the email that is offensive, threatening or "scolding." The Agency concluded that "such an email patently is not something likely to 'reasonably deter' protected activity." With regard to claim 2, the Agency found that Complainant had not brought the matter to the attention of the EEO counselor. With regard to claim 3, the Agency reasoned that Complainant suffered no harm, "because no detrimental action was actually taken." The Agency dismissed claim 4 for untimely EEO contact.
This appeal followed. On appeal, Complainant states that he did bring all of the matters to the attention of the EEO Counselor who was initially assigned to his claim. He also provided answers to the questions that were submitted to him by the second EEO counselor.
ANALYSIS AND FINDINGS
Failure 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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. Thus, not all claims of harassment are actionable. Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment are usually not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Complainant's claim is that management supported ongoing harassment of him. He claims that the Caucasian female employee "operates as if she is the director of the Command" and as if she had not departed his directorate. He claims that he was singled out for humiliation, verbal harassment, an attempt to diminish his duties, and interference in the program which Complainant directs, because of Complainant's race and sex and after he made contact with the EEO Office. This is sufficient to state a claim of harassment.
Timeliness
In this case, Complainant's April 3, 2015 EEO counselor contact was timely made from some of the events he proffered as examples of the alleged ongoing harassment and a hostile work environment. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l Railroad Passenger Corp. v. Morgan, 536 US 101 (June 10, 2002). We find that the Agency failed to meet its burden of establishing that Complainant's contact was untimely made with regard to the alleged claims from December 2014 to May 15, 2015.
Accordingly, we REVERSE the Agency's final decision. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. These claims include the retaliation and hostile environment claims. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 17, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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