05a00806gresham
01-26-2001
Charla A. Gresham, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Charla A. Gresham v. Army
05A00806
January 26, 2001
.
Charla A. Gresham,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A00806
Appeal No. 01993078
Agency No. 9901J0020
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Charla
A. Gresham v. Army, EEOC Appeal No. 01993078 (May 11, 2000).<1>
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b). The request to reconsider
is denied.
In its final decision (FAD), the agency defined the issue of the
complaint as whether the complainant was sexually harassed (quid pro
quo and hostile work environment) when she was denied promotions and
awards on the bases of her race (African American), color (Black),
and in reprisal for prior EEO activity. In dismissing the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,
the agency stated that unfair treatment, favoritism and a consensual
sexual relationship did not violate Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The agency
also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),
noting that the issues raised were the same issues raised in a grievance
which the complainant filed
on July 21, 1998. In addition, the agency dismissed the reprisal claim
on the grounds that the complainant had failed to prosecute. See 29
C.F.R. � 1614.107(a)(7).
Complainant appealed, and the Commission reversed the FAD. The
Commission found that the agency's dismissal of the complaint for
failure to state a claim was improper, because promotions and awards are
terms, conditions and privileges of employment. Regarding the agency's
dismissal, because complainant had filed a grievance raising the same
issue, the Commission emphasized that the agency had failed to submit
a copy of the collective bargaining agreement so that the Commission
could determine whether there existed a collective bargaining agreement,
pertaining to the complainant, permitting allegations of discrimination to
be raised in a grievance procedure. Finally, the Commission found that
the agency's dismissal of the reprisal claim was improper, because the
information requested could be obtained during the further processing
of the complaint. In addition, the Commission held that the agency
improperly addressed the merits of the complaint in a procedural
decision.
The agency, in its request to reconsider, submitted that complainant's
sexual harassment claim should be dismissed for failure to state a claim
since it centers totally around an alleged consensual relationship
and the favoritism shown to the alleged paramour. The agency failed
to consider the definition of sexual harassment contained in the
Commission's Guidelines on Discrimination Because of Sex, 29 C.F.R. �
1604.11 (2000). Most significantly, 29 C.F.R. � 1604.11(g) provides
that �[w]here employment opportunities or benefits are granted because
of an individual's submission to the employer's sexual advances or
requests for sexual favors, the employer may be held liable for unlawful
sex discrimination against other persons who were qualified for but
denied that employment opportunity or benefit.� See also Broderick
v. Ruder, 685 F.Supp. 1269 (D.D.C. 1988) (applying inter alia 29 C.F.R. �
1604.11(g)). Significantly, complainant has alleged that she was denied
promotions and awards because of the alleged favoritism shown the alleged
paramour.
In addition, it is �the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.� 5A Charles A. Wright & Arthur
R. Miller, Federal Practice and Procedure � 1357 at 325 (2d ed. 1990),
quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In the instant
case, complainant's allegations, if proved, could establish a finding
of discrimination in violation of Title VII.
The agency also submitted in its request for reconsideration a copy
of the relevant provision of its collective bargaining agreement.
This documentation should have been provided by the agency as part of the
record during the Commission's prior review of this matter. The agency's
submission of this material at this juncture is untimely, and does not
satisfy the criteria of 29 C.F.R. � 1614.405(b). See Kathleen Gough
v. Department of Transportation, EEOC Request No. 05991035 (July 21,
2000)(request to reconsider denied, even though pertinent part of
collective bargaining agreement submitted with request�submission found
to be untimely at that juncture).
Finally, with respect to the retaliation claim, the agency essentially
reiterates its arguments made before the Commission in the prior decision.
The Commission sees no error in the prior decision or issue under
29 C.F.R. � 1614.405(b) to warrant granting the agency's request for
reconsideration on this point.
After a review of the Army's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 01993078 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
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 (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.
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
January 26, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.