Carolyn J. Rigsby, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01981826 (E.E.O.C. Apr. 13, 1999)

01981826

04-13-1999

Carolyn J. Rigsby, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Carolyn J. Rigsby v. Department of the Army

01981826

April 13, 1999

Carolyn J. Rigsby, )

Appellant, )

)

v. ) Appeal No. 01981826

) Agency Nos. 9712H1200

Louis Caldera, ) 9712H1210

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from two final decisions of

the agency concerning her complaints 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., and Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. Appellant received the final agency

decisions on November 26, 1997. The appeal was postmarked December 24,

1997. 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.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaints on the grounds of failure to state a claim.

BACKGROUND

Appellant initiated contact with an EEO Counselor on June 17, 1997.

In a formal EEO complaint dated November 13, 1997 (Agency No. 9712H1200),

appellant alleged that she had been discriminated against on the bases of

her sex (female), disability (stress, hives, headaches) and in reprisal

for her previous EEO activity when pursuant to an agency investigation,

she was forced to sign a sworn affidavit without representation, and under

the threat of removal from her position if she did not sign the affidavit.

Appellant characterized the agency's treatment of her as harassment.

In a second formal EEO complaint, dated November 13, 1997 (Agency

No. 9712H1210), appellant alleged discrimination on the same bases when on

June 16, 1997, she was called into an investigation after a class action

was filed regarding her termination. Appellant claimed that the agency

wanted to know the specifics of the Title VII class action complaint and

she was threatened with disciplinary action if she failed to cooperate.

The record reveals that the agency instituted an investigation with

regard to meetings allegedly held on or about June 4 and 5, 1997, which

were not sanctioned by management or union officials. The meetings

purportedly involved the solicitation of money for legal fees to sue

the agency and the dissemination of false information regarding the

proposed reduction-in-force.

In two separate final decisions, the agency dismissed appellant's

complaints on the grounds of failure to state a claim. In both decisions,

the agency determined that the alleged discrimination did not involve

the type of issue that Title VII was intended to address.

On appeal, appellant contends that she was harassed due to her

participation in the EEO complaint process. According to appellant, she

was told that she would give a sworn statement concerning the meeting she

had attended. Appellant states that she refused, but was told that she

had to give a sworn statement or she would be removed from her position.

Appellant claims that she requested representation, but that request

was rejected. According to appellant, she was sent to sign the statement

on the following day as well, she again refused, and she was again told

that she would be removed from her position if she did not sign.

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 complaints, appellant alleges that she was subjected to

harassment when she was called into an investigation and questioned

regarding the specifics of a class complaint, and she was forced to

sign a sworn affidavit without representation under the threat of being

removed from her position if she did not sign. Viewing the identified

allegations in the light most favorable to appellant, we find that

appellant has stated cognizable claims under the EEOC Regulations.

See Cervantes v. United States Postal Service, EEOC Request No. 05930303

(November 12, 1993). We find that the threat of removal from her position

if she did not sign the affidavit and being questioned and threatened with

disciplinary action if she failed to cooperate by providing the details of

a class complaint were sufficiently severe so as to alter the conditions

of appellant's employment. Accordingly, the agency's decisions to dismiss

appellant's complaints for failure to state a claim were improper.

Finally, EEOC Regulation 29 C.F.R. �1614.606 provides that two or more

complaints filed by the same complainant may be consolidated by the

agency or the Commission for joint processing. We find that appellant's

complaints should be consolidated for further processing.

CONCLUSION

The agency's final decisions are hereby REVERSED. Appellant's complaints

are hereby REMANDED for joint processing in accordance with the Order

below.

ORDER

The agency is ORDERED to take the following actions:

Within thirty (30) calendar days of the date this decision becomes

final the agency shall acknowledge to appellant that it has received

the remanded complaints and that her complaints are being consolidated

for further processing.

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/consolidation 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:

April 13, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations