01a00537
03-07-2001
Carolyn B. Kamara, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Carolyn B. Kamara v. Department of Labor
01A00537
March 7, 2001
.
Carolyn B. Kamara,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A00537
Agency No. 9-03-088
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final decision dated October 19, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. In her complaint, dated March 16,
1999, complainant alleged that she was subjected to discrimination
on the bases of race (Black), color (Medium Brown), national origin
(African American), age (50 at relevant time), sex (Female) and reprisal
(previous EEO complaint), when: (a) the Regional Director retaliated
against complainant on numerous occasions; (b) complainant was not
selected for the State Director position; and (c) complainant's travel
voucher was falsified by the Regional Director.
The record establishes that on June 15, 1999, the Agency requested
that complainant provide additional information, to allow the Agency to
make a determination as to whether or not complainant was subjected to
discrimination. In response, complainant alleged a continuing pattern
of discrimination and harassment when:
complainant had a discussion with the Regional Director about the mileage
on her travel voucher;
complainant was not selected for several State Director positions for
which she applied between 1993 and 1998, including the State Director
position, Vacancy Announcement Number AT-98-134;
complainant received at least ten memos between 1992 and 1997, from the
State Director, which expressed concern about complainant's mental state
while also threatening her with the loss of her job;
the Agency refused to reassign her to another supervisor after
complainant's prior EEO complaint;
complainant's supervisor did not talk to her;
complainant received two reprimand letters;
the Regional Director refused to give complainant a new laptop computer
when all other field representative were given new ones.
The agency dismissed the complaint, pursuant to EEOC Regulation 29
C.F.R.� 1614. 107 (a) (1), for failure to state a claim. Specifically,
the agency stated that complainant failed to establish that she had
suffered any personal loss or harm with regard to a term, condition,
or privilege of employment. Also, the agency dismissed claim (2),
for failure to state a claim, noting that the position in question
was canceled. Specifically, the agency stated that complainant
failed to established that she was injured by the cancellation of
the position. Further, the agency dismissed complainant's claim of
continuous retaliation for untimeliness. Specifically, the agency stated
that complainant's allegation of continuous retaliation did not have the
required link to a timely complaint of discrimination that fell within
the limitations period of 45 calendar days of her initial contact with
the EEO Counselor.
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). 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
the Regional Director directed her to falsify her travel voucher and
management constantly questioned her mileage. Also, complainant alleged
that management sent various memorandums to her which expressed concerns
about complainant's mental state. Further, complainant alleged that
her supervisor refused to speak to her or provide managerial guidance
after her prior complaint. Complainant stated that as a part of the
harassment, management sent two reprimand letters to her.
Complainant alleged that, since 1994, she applied for a several State
Director (SD) positions, and was not selected. Complainant stated
that she applied for the SD positions in Atlanta, Georgia; Jackson,
Mississippi; Montgomery, Alabama; Memphis, Tennessee; Raleigh, North
Carolina; and Washington, D.C. In all of the positions she applied for,
she received only one interview. Also, complainant stated that the
former Bureau of Apprenticeship and Training (BAT) Regional Director
told her that the Regional Director stated that �the worst person that
you could hire is an educated Black female� referring to complainant.
Further, complainant stated that management refused to give her a new
laptop computer, when all other field representatives were given new
ones. The Commission finds that, taken together, these allegations state
an actionable claim of discriminatory and retaliatory harassment.
The Commission also notes that the agency's dismissal of retaliation
claims for untimeliness was improper. EEOC Management Directive 110
specifically provides an exception to the dismissal of allegations for
untimely contact of an EEO Counselor when a complainant alleges that
the claim is a part of a continuing violation. To establish a continuing
violation, a complainant must show a series of related acts, one or more
of which is timely brought to the attention of a counselor. The record
established that complainant contacted an EEO Counselor on November 24,
1998, and the last incident of harassment was on October 14, 1998,
when the Regional Director questioned complainant about the mileage
in her travel voucher. Complainant alleged a series of related acts,
that would be timely under the continuing violation theory. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 5-15 (as revised November 9, 1999). See Ming-Chiang Li
v. Department of Navy, EEOC Request No. 05980300 (October 13, 2000); Brown
v. Department of Army, EEOC Request No. 05970558 (September 15, 2000).
After careful review, we find that complainant has stated an actionable
claim of discriminatory and retaliatory harassment. Accordingly, we
REVERSE the agency's dismissed 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
March 7, 2001
Date
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Date