01a13303
07-03-2002
Chitra Rajagopalan, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Chitra Rajagopalan v. Department of Veterans Affairs
01A13303
7/3/02
.
Chitra Rajagopalan,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13303
Agency No. 200M-1382
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Complainant claimed that she had been discriminated against
on the bases of race (Indian - Asian), sex (female) and reprisal.
Complainant also asserts she was subjected to a hostile work environment.
BACKGROUND
In the initial complaint filed on December 27, 2000, complainant asserts
that she was discriminated against when, on September 25, 2000, the
Chairman of the Pathology School of Medicine<1> accused her of ethnic
discrimination and asked her to step down from her position as Chief
of Pathology. Complaint also documented an incident occurring the next
day, when the Chairman informed her that he wanted her to write a letter
of resignation, and advised her he had �gotten rid of VA Chiefs before�.
Complainant did not resign her position, but asserts that the Chairman's
actions contributed to a hostile work environment.
Complainant has received excellent performance evaluations during
her career at the agency. Specifically, in July 2000, complainant
underwent a survey evaluating her leadership and communication skills,
in which she received an excellent evaluation. When complainant told
the Chairman about her survey scores, he said he did not believe the
scores because the survey was done by an administrator, not a sociologist.
Complainant said she was hurt by the Chairman's remarks and the way that
he dealt with the matter and feels that his actions were retaliatory and
discriminatory in nature. The record shows that in 1988, the Chairman
had another problem with a Chief of Pathology which prompted that doctor
to resign from the agency. The agency's management submitted a letter
in the record supporting the complainant's claim and finds her to be an
excellent doctor.
The Commission regulations set forth in 29 C.F.R. � 1614.106(d) allow
complainant to amend her initial complaint filed on December 27, 2000.
On February 14, 2001 the agency received a letter from complainant
documenting additional harassing incidents. For example, on February 2,
2001, complainant claims the Chairman insulted her when she questioned
why he deleted her name in a recruitment ad placed in the New England
Journal of Medicine. Additionally, complainant asserts that during the
week of February 5, 2001, the new Chief of Staff informed her that her
performance would be reviewed by a faculty member at the University of
Colorado Health Sciences Center School of Medicine, in addition to her
supervisor at the agency. Complainant claims that she was being singled
out for additional performance reviews due to the conflict she had with
the Chairman. The agency already had the July 2000 performance review
survey in her record and she questioned if other Chiefs of Pathology
had to undergo an additional performance review. The record reveals the
agency took in consideration the incidents claimed in the February 14,
2001 letter when making its final decision.
On March 26, 2001, the agency issued a final decision dismissing the
complainant's claim on the grounds the complaint did not state a claim.
Specifically, the agency contended that complainant failed to provide
documentation that the harassment and hostile environment were pervasive
or severe enough to constitute a claim.
In her statement of appeal dated May 23, 2001, complainant provides
a detailed letter specifying additional incidents of discrimination.
In the letter, complainant asserts that throughout her career at the
agency, the Chairman has made inappropriate comments about her race,
specifically her Indian accent, and about women; for example, stating
that women at the office could solve their personal problems if they
had intercourse with a man. Complainant states the reason she did not
come forth with these allegations of racial and sexual harassment in her
initial complaint is she feared that the Chairman would take retaliatory
action and ruin her work reputation, or try to get her fired. Although
complainant insinuated incidents of reprisal in her initial complaint,
she officially added reprisal as a basis of her complaint in her appeal
statement.
ANALYSIS
The discrimination claims in the appeal statement date as far back 1991
which makes most of these claims time barred because she failed to bring
the matters to the attention of an EEO Counselor. Complainant states that
the reason she did not include the additional discrimination claims in
her appeal statement in her initial complaint, and/or file these claims
earlier is because she feared reprisal from the Chairman. We note,
however, the Commission has repeatedly held that mere fear of reprisal
is an insufficient justification for not contacting an EEO Counselor
in a timely manner. See Duncan v. Department of Veterans Affairs,
EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Department of
Defense, EEOC Request No. 05930898 (December 9, 1993). However, it is
well-settled that past alleged discriminatory events, which were not
the subject of timely complaints, may be used as background evidence for
a timely complaint, although they otherwise have no legal consequences
under Title VII. See United Airlines v. Evans, 431 U.S. 553, 558 (1977).
Therefore, on remand, the agency is directed to consider the untimely
claims as background evidence.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). 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 (April 21, 1994). The agency dismissed the complaint
for failure to state a claim. Specifically, the agency determined a
reasonable person would not view the allegations of harassment severe
enough to alter the conditions of complainant's employment.
The only questions for an agency to consider in determining whether a
complaint states a claim are: (1) whether the complainant is an aggrieved
employee and (2) whether complainant raises employment discrimination
on a basis covered by EEO statutes. If these questions are affirmed,
an agency must accept the complaint for processing regardless of its
judgement of the complaint's merits. See Odoski v. Department of Energy,
EEOC Appeal No. 0190149 (April 16, 1990). Moreover, if a review of a
dismissed complaint persuades the Commission that if treated true, it
would be sufficient to state a claim of harassment, then the complaint
must be processed. Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Hostile work environment harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). In assessing whether complainant has stated a claim of hostile
work environment, the trier of fact must consider all of the alleged
harassing incidents and remarks together in the light most favorable
to the complainant to determine whether they are sufficient to state
a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970097
(March 13, 1997).
In the present case, complainant asserts that she was falsely accused by
the Chairman of ethnic discrimination and therefore was asked to resign
from her position as the Chief of Pathology. Moreover, complainant claims
that due to her discrimination allegations against the Chairman, she is
being singled out for additional performance reviews. The Commission
reviews these harassing incidents, as if they were true, all together, and
in a light most favorable to the complainant. Therefore, the Commission
determines that the matter raised in the complaint is sufficient to
state a claim.
The final agency decision dismissing the complaint is REVERSED. The
complaint is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim of harassment 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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, Director
Office of Federal Operations
7/3/02
Date
1 Although the Chairman is not an employee of the agency, the record
shows the agency and the Pathology School of Medicine have an affiliation
agreement. The record also indicates that the Chairman has the ability
to initiate performance evaluations of the Chiefs of Pathology.