01a02466
02-08-2001
Andrea Williams, Complainant, v. Lawrence H. Summers, Secretary of the Treasury, Agency.
Andrea Williams v. Department of the Treasury
01A02466
February 8, 2001
.
Andrea Williams,
Complainant,
v.
Lawrence H. Summers,
Secretary of the Treasury,
Agency.
Appeal No. 01A02466
Agency No. 99-4357
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 28, 2000, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination.
When informal efforts to resolve complainant's concerns failed,
complainant filed a formal complaint. In her complaint, complainant
alleged that she was subjected to discrimination and a pattern of
harassment on the basis of retaliation when:
on June 28, 1999, she was given a departure appraisal in an interoffice
envelope without any discussion from her manager;
on August 2, 1999, her manager gave a subordinate employee a memorandum
documenting a conversation concerning complainant's attendance at a Core
Leadership Training class and a copy of this memorandum was placed in
complainant's Employee Performance Folder (EPF);
a harassment allegation she raised was not properly addressed and /or
mismanaged;
during the course of EEO counseling, her manager informed the EEO
counselor that complainant was the subject of a conduct investigation;
during a staff meeting on August 5, 1999, her manager spent only one
and a half minutes discussing the contents of a memorandum on prevention
of sexual harassment;
on June 3, 1999, her manager belittled her for filing an EEO complaint;
management pressured her to relocate to the Washington, DC area;
management excluded her from various staff meetings by not informing
her of the meetings;
she has not been given acting assignments; and
management has undermined her authority and discredited and defamed her.
The agency issued a final decision dismissing the complaint, pursuant
29 C.F.R.� 1614.107(a)(1), for failure to state a claim. Specifically,
the agency stated that complainant had failed to establish that she had
suffered any personal loss or harm with regard to a term, condition, or
privilege of employment. The agency dismissed claim (2), stating that
complainant's speculation in regard to potential future injury, does not
establish a tangible personal loss or harm in regard to her employment
with the agency. Also, the agency dismissed claim (6), stating that oral
comments unaccompanied by concrete actions, do not amount to personal
harm sufficient to make an individual �aggrieved� under 29 C.F.R. Part
1614. Further, the agency dismissed the harassment allegations, stating
that the incidents described by complainant are not sufficiently severe
or pervasive to create a hostile work environment. The agency stated
that the alleged acts did not unreasonably or frequently interfere with
complainant's ability to perform her job and did not alter the conditions
of her employment.
As an initial matter, we note that the incident described in claim (4)
should have been dismissed pursuant to 29 C.F.R. � 1614.107 (a) (8)
because it alleges dissatisfaction with the processing of a previously
filed complaint. We therefore affirm the agency's dismissal of claim
(4).
Turning to the remaining incidents, we find that the agency improperly
dismissed complainant's complaint for failure to state a claim. In Harris
v. Forklift Systems , Inc., 510 U.S. 17, 21 (1993), the Supreme Court
found that harassment is actionable, even absent a claim that an agency's
action harmed complainant in a specific term, condition or privilege of
employment, as long as the complainant can otherwise demonstrate that
the conduct was engaged in with the purpose of creating a hostile work
environment, and that the conduct is sufficiently severe or pervasive
as 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 sate a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997);
Holmes v. United Postal Service, EEOC Appeal No. 01A05487 (December 13,
2000). After a careful review of the record, we find that complainant
states a claim of harassment.
Complainant described several actions taken by management officials
allegedly motivated by a retaliatory animus. Complainant alleged that
her supervisor mailed her a departure appraisal, but did not initiate
any discussion of this appraisal as is customary. Also, complainant
alleged that her supervisor issued a memo to document a conversation
about complainant attendance at a training session and included a copy
in complainant's EPF. Complainant stated that by taking this action,
her supervisor was attempting to build a case against her for future
disciplinary action. Further, complainant alleged that she was subject
to sexually harassing comments and management refused to take any
action. Complainant alleged that management made a mockery of her sexual
harassment complaint and the agency's harassment policy. Complainant
stated that on June 3, 1999, management convened a meeting to discuss
the harassment policy and that in this meeting they embarrassed and
humiliated her because she filed a EEO complaint. She asserts that a
result of management's comments, many coworkers, friends and customers
have shunned her.
Complainant alleged that after she filed the EEO complaint, management
started to pressure her to relocate to the Washington D.C. area, although
she never expressed an interest in such a reassignment. Similarly,
while prior to filing the complaint , complainant was included in Host
Site staff meetings, after she filed the complaint, management excluded
her from staff meetings by not informing her of the meetings. Moreover,
complainant alleged that since she filed the EEO complaint, management
stopped giving her any assignments as Acting Host Site Chief. The
Commission finds that, taken together, these allegations state an
actionable claim of harassment on the basis of retaliation.
The Commission also notes that the agency's dismissal of claim (2)
was improper. EEOC Management Directive 110 specifically provides an
exception to the dismissal of allegations of a proposed action or a
preliminary step when a complainant alleges that a proposed action or
preliminary step was part of a pattern of ongoing harassment. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 5-22 (as revised November 9, 1999). See also Butler
v. Department of Labor, EEOC Request No. 05891016 (December 1, 1989);
Smith v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01950607
(May 1, 1995). Because the quarterly performance discussion was part
of an allegation of unlawful harassment on the basis of retaliation,
we find that the agency improperly dismissed claim (2).<1>
Similarly, the agency dismissal of claim (6) was improper. While
isolated comments may not be regarded as creating a discriminatory
work environment, in the case at hand complainant described several
incidents in support of her harassment claim. By separately considering
and dismissing the incident described in claim (6), the agency fragmented
complainant's harassment claim. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994) (agencies must address
the pattern aspect of harassment claims to avoid piecemeal dismissal);
See also EEO-MD-110, at 5-5.
After careful review, we find that complainant has stated an actionable
claim of retaliatory harassment. The agency dismissal of claim (4)
was proper and is hereby AFFIRMED. However, the agency improperly
dismissed the remainder of the complaint. Accordingly, we REVERSE that
determination and REMAND the complaint to the agency, as framed herein,
for further processing as set forth in the ORDER below.
ORDER (E0400)
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, Acting Director
Office of Federal Operations
February 8, 2001
____________________
Date
______________
Date 1Moreover, as the Quarterly Performance Discussion was reduced to
writing and appears to be maintained in agency files, its existence
would appear to render complainant aggrieved even in the absence of
his harassment allegations. See McAlhaney v. U.S. Postal Service,
EEOC Request No. 05940949 (July 7, 1995).