01A03966
07-18-2002
Archibald M. Martin, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Archibald M. Martin v. Department of the Navy
01A03966
July 18, 2002
.
Archibald M. Martin,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03966
Agency No. DON 96-680-84-002
DECISION
Complainant filed an appeal with this Commission from an agency decision,
issued on April 6, 2000, regarding his complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On February 20, 1996, complainant filed a formal complaint claiming he
was discriminated against on the basis of age. The agency framed the
claims as follows:
(a) On September 14, 1995, the Department Head of Occupation Health and
Preventive Medicine harassed complainant for failing to see a patient
on a clinic visit;
(b) On August 31, 1995, the Department Head discussed complainant's
arriving late at work, when he was not late;
(c) From 1993 to 1995, complainant received unequal credit for clinic
patient visits;
(d) From 1993 to 1995, complainant was ordered to stay until 1610 when
other HCP are not also required to do this;
(e) In August or September 1993, the Department Head ordered his daughter
to kick complainant in the leg;
(f) In the spring of 1994, the Department Head threatened to slap
complainant's face if complainant told him again that he did not
appreciate the clinic schedule problems; and,
(g) On May 18 and 25, 1995, the Department Head made derogatory remarks
about complainant's gray hair and forgetfulness.
On April 1, 1996, the agency issued a decision dismissing claims (a),
(b), and (c) for failure to state a claim. Claim (d) was dismissed for
failure to state a claim and untimely counselor contact. The agency
also dismissed claims (e), (f) and (g) for untimely counselor contact.
Complainant appealed the agency's decision to the Commission.
With respect to claims (a) - (d), the Commission found that the agency
improperly considered the incidents individually, rather than part of
a broader claim of harassment. See Archibald M. Martin v. Department
of the Navy, EEOC Appeal No. 01964219 (March 6, 1998). Consequently,
claims (a) - (d) were found to state a claim and the agency's decision
to dismiss those claims was reversed. See id. The Commission also
noted that although complainant claimed that he was subjected to
"recurring incidents" of discrimination, the agency failed to conduct
a continuing violation analysis before dismissing claims (e) - (g)
for untimely counselor contact. See id. Consequently, the agency's
dismissal of claims (e) - (g) was vacated that the agency was ordered
to conduct a supplemental investigation to determine whether complainant
had established a continuing violation. See id.
In compliance with the Commission's order, the agency issued a new
decision regarding claims (e) - (g) on April 6, 2000. The agency
determined that complainant failed to establish a continuing violation,
and therefore "the agency's prior decision to dismiss your complaint
. . . remains in force." Specifically, the agency reasoned that claims
(a) and (b) were unsupported by a concrete action and did not render
complainant an aggrieved employee. Therefore, according to the agency,
the claims could not be considered part of a continuing violation.
Similarly, the agency found that claims (c),(d), (e) and (f) were not
sufficiently severe or pervasive to alter the conditions of complainant's
employment. Moreover, the incidents should have triggered complainant's
awareness when the occurred, but complainant failed to assert his rights
at that time. With respect to claim (g), the agency noted that remarks
alone do not render one an aggrieved employee. The agency concluded
that complainant failed to establish, through claims (a) - (g), that
he was an aggrieved employee, and that "[i]n order to consider the
continued violation theory the employee or individual would have to
be aggrieved." With no continuing violation established, the agency
dismissed the complaint.
On appeal, complainant, through his attorney, argues that a continuing
violation was established. Complainant asserts that "these series of
events were recurring and chronic for a period commencing in 1993 to
1995." Complainant argues that the claims are linked by a common theme,
namely the Department Head's general displeasure with the presence of
complainant due to his age. For almost two years he was purportedly
subjected to "a patently hostile and discriminatory work environment on
a daily basis. . . ."
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As an initial matter we note that in its April 6, 2000 decision
the agency erroneously stated that claims (a) - (d) did not render
complainant an "aggrieved" employee and were not sufficiently severe
or pervasive to alter his working conditions. The agency stated that
its "prior decision to dismiss [the] complaint . . . remains in force."
As noted above, the Commission's earlier decision found that claims (a) -
(d), considered together, comprised one broader claim of discriminatory
harassment. We determined that claims (a) - (d) stated a claim and were
improperly dismissed by the agency. Only claims (e) - (g) were remanded
for a supplemental investigation, and possible dismissal.
The prior Commission decision ordered the agency to reconsider the
timeliness of claims (e) - (g). In response the agency again found
that the claims were untimely and that no continuing violation had been
established, since the timely claims, in the agency's view, failed to
state a claim. The Commission, however, disagrees. We find that a fair
reading of the instant complaint reflects that complainant is claiming
a pattern of harassment as evidenced by all the incidents set forth in
his complaint, claims (a) - (d) and (e) - (g). Moreover, we find that
complainant's EEO Counselor contact regarding his claim of harassment is
timely, by virtue of the September 14, 1995 (failing to see a patient)
and August 31, 1995 (late to work) incidents.
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
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.
The trier of fact must consider all of the alleged harassment incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Here, complainant claims that he was ordered to stay until 1610 on an
ongoing basis and continuously given unequal credit for clinic patient
visits. Complainant was also purportedly subjected to remarks and
comments regarding his work and age. Further, this series of events
all involve complainant's Department Head. Therefore, we find that
this complaint, including claims (e) - (g), is sufficient to state an
actionable claim of harassment based on the legal standards set forth
above, and that the agency improperly dismissed the claims on the grounds
of untimely EEO Counselor contact.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
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 (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
July 18, 2002
__________________
Date