01983448
02-11-1999
Carolyn H. Keenan, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Carolyn H. Keenan v. Department of the Navy
01983448
February 11, 1999
Carolyn H. Keenan, )
Appellant, )
)
v. ) Appeal No. 01983448
) Agency No. 95-62467-023
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was issued on November
7, 1997. The appeal was postmarked March 28, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed an allegation
of appellant's complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 9, 1995.
On August 11, 1995, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her sex
(female) and in reprisal for her previous EEO activity when:
1. Her Supervisor did not consider a request by an external customer to
change her rating on the customer feedback form from level 4 (Exceeds
Fully Successful) to level 5 (Outstanding).
2. Her Supervisor did not evaluate her performance fairly for the period
ending March 31, 1995.
3. She received an Exceeds Fully Successful as her rating for the
appraisal period ending March 31, 1995, rather than a rating of
Outstanding.
4. She has been worked outside the scope of her position description
for over three years.
5. Her Supervisor intimidated her and instilled fear by suggesting that
her position may be downgraded to a GS-5.
6. Her duties and responsibilities were reduced.
Appellant characterized the agency's treatment of her as harassment.
The agency accepted the complaint for investigation. The investigation
concluded that appellant had not been subjected to discrimination.
Appellant requested a hearing before an EEOC Administrative Judge (AJ).
On November 7, 1997, the agency dismissed allegation 5 of appellant's
complaint on the grounds of failure to state a claim. The agency
determined that appellant was not affected with regard to a term,
condition, or privilege of her employment.
On appeal, appellant contends that the alleged incidents constituted
harassment and thus affected a term, condition, or privilege of her
employment.
In response, the agency asserts that the statement that a desk audit could
cause appellant's position to be downgraded to a GS-5 was an isolated
remark unaccompanied by injury to appellant, and therefore appellant is
not aggrieved. The agency maintains that the statement does not rise
to the level of harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
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. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive 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 state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, appellant alleges that she was subjected to
harassment when her Supervisor suggested that her position might
be downgraded to a GS-5 as a result of a desk audit; she was worked
outside the scope of her position description for over three years; her
duties and responsibilities were reduced; and her performance rating for
the period ending March 31, 1995, was Exceeds Fully Successful rather
than Outstanding. We note that all of the identified incidents were
perpetrated by appellant's Supervisor. Viewing the identified remark
in allegation 5 and the incidents set forth in the other allegations
in the light most favorable to appellant, we find that appellant has
stated a cognizable claim under the EEOC Regulations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November
12, 1993). Accordingly, the agency's decision to dismiss allegation
5 of appellant's complaint for failure to state a claim was improper.
Allegation 5 is hereby REMANDED for further processing in accordance
with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (Allegation 5)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
February 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. The certified receipt signed by appellant's attorney does not
indicate the date of delivery. The agency argues that the final agency
decision must have been received on November 10, 1997, since the other
two final decisions issued on November 7, 1997, were received on that
date. However, absent further evidence to support the agency's position,
we decline to presume that appellant's attorney received the final
agency decision on November 10, 1997.