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