01A40937_r
03-24-2004
Brenda L. Mathews, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Brenda L. Mathews v. Department of the Navy
01A40937
March 24, 2004
.
Brenda L. Mathews,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40937
Agency No. 03-62204-012
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated October 23, 2003, 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 agency
framed the claims of complainant's complaint as follows:
Complainant alleged that she was subjected to discrimination on the
bases of race (Black) and sex (female) when:
On November 26, 2002, the Base Locksmith broke into complainant's truck
and removed a tool complainant had borrowed from him. When complainant
confronted him about the break-in, he made a statement that Black people
stick together.
Since December 27, 2002, complainant has been denied Locksmith training.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency also dismissed claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds this claim is moot
inasmuch as complainant attended locksmith training on September 15, 2003.
We find the agency improperly framed the claims of complainant's
complaint. In her complaint, complainant describes incidents of
harassment that allegedly occurred on more than one occasion, including:
3. On November 26, 2002, the Base Locksmith broke the lock on
complainant's truck.
4. On repeated occasions, the Base Locksmith has locked complainant out
of the base Lockshop by changing the lock. Complainant would then have
to "pick" the lock, which slowed her work down.
5. On various occasions, the Base Locksmith adjusted the key making
machine so that none of the keys complainant made would work properly.
6. The Base Locksmith informed customers, including material expediters,
not to allow complainant to order locksmith supplies.
7. At the request of the Base Locksmith, complainant has been denied
overtime opportunities on various occasions.
We find that in her complaint, complainant alleged a series of events
which allegedly occurred for approximately two years prior to the time
complainant sought EEO Counseling. Specifically, complainant alleged that
she was subjected to harassment which created a hostile work environment.
Instead of treating these events as incidents of the claim of harassment,
however, the agency excluded most of the incidents of harassment and
considered the incidents separately. 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
complained of). Consequently, when all of the incidents are viewed in
the context of complainant's claim of harassment, they state a claim and
the agency's dismissal of complainant's harassment claim for failure to
state a claim was improper.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
We find complainant's claim regarding locksmith training is not moot.
Complainant states on appeal that she paid for the training herself
and was not reimbursed. Moreover, complainant has requested $20,000
in relief. We find complainant has requested compensatory damages.
The agency has not addressed complainant's request for compensatory
damages. Accordingly, complainant's claim that she was denied locksmith
training is not moot. The agency's dismissal of this claim pursuant to
29 C.F.R. � 1614.107(a)(5) was improper.
Accordingly, we REVERSE the agency's dismissal of the complaint.
We REMAND the complaint to the agency for further processing as directed
herein.
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
March 24, 2004
__________________
Date