01a01890
07-12-2000
Christina Easter, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Christina Easter v. Department of the Treasury
01A01890
July 12, 2000
Christina Easter, )
Complainant, )
)
v. ) Appeal No. 01A01890
) Agency No. 99-3237
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision pertaining to 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. �1614.405).
On July 26, 1999, complainant contacted the EEO office regarding claims of
discrimination based on race, sex, and age. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on August 18,
1999, complainant filed a formal complaint. The agency framed the claims
as follows:
On July 12, 1999 complainant became aware that management had delayed
the processing of her request for advance sick leave; and,
Complainant was subjected to ongoing harassment and a hostile work
environment when management repeatedly snapped at her and engaged in
unprofessional behavior towards her.
On November 26, 1999, the agency issued a decision dismissing
the complaint. Specifically, claim 1 was dismissed as moot. Claim
2 was dismissed for failure to state a claim and untimely Counselor
contact. Regarding complainant's sick leave request (claim 1), the agency
determined that complainant's request had been approved and her records
amended on August 13, 1999. With respect to the claim of harassment
(claim 2), the agency noted that it had asked complainant to provide
information describing specific incidents. Following complainant's
response, the agency determined that the alleged harassment by
complainant's manager began in November 1998 and included incidents such
as: standing over complainant's shoulder; interrupting complainant;
hollering; and treating complainant in an unprofessional manner.
According to the agency, complainant failed to show how the alleged events
affected a term, condition, or privilege of her employment. Further,
the agency determined that complainant should have contacted the EEO
office earlier and that claim 2 was not part of a continuing violation.
On appeal, complainant contends that claim 1 is not part of her complaint.
Complainant explains that she informed the Counselor that she �was not
worried about [her] compensation because the manager had already stated
[that her] time cards would be amended....� Further, complainant argues
that the numerous incidents of harassment she alleged are sufficient to
state a claim of harassment.
In response, the agency reiterates the determinations made in their
decision and requests that the Commission affirm their dismissal.
Claim 1
As noted above, on appeal complainant contends that the agency �has made a
finding regarding a claim that was not part of my complaint, specifically
claim 1) ....� Further, complainant states that she explained to the
EEO Counselor that she was not worried about her compensation since the
manager indicated she would receive her back pay. Therefore, in light
of complainant's assertions that claim 1 is not part of the instant
complaint, we will not address this matter any further.
Claim 2
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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.
Commission policy holds that harassment claims are sufficient to state
a claim when, considered together and assumed to be true, they are
sufficient to state a hostile or abusive work environment claim. See
Miller v. United States Postal Service, EEOC Request No. 05941019
(June 2, 1995). Consistent with the Commission's policy and practice
of determining whether a complainant's harassment claims are sufficient
to state a hostile or abusive work environment claim, the Commission
has repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim. See
Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly
found that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render an
individual aggrieved for the purposes of Title VII. See Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. United States Postal Service, EEOC Request No.05940695 (February 9,
1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person
in the complainant's circumstances would have found the alleged behavior
to be hostile or abusive. Even if harassing conduct produces no tangible
effects, such as psychological injury, a complainant may assert a Title
VII cause of action if the discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees because
of their race, gender, religion, or national origin. Rideout v.
Department of the Army, EEOC Request No. 01933866 (November 22, 1995)
citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance. Harris, 510 U.S. at 23.
Here, the agency dismissed claim 2 for failure to state a claim, finding
that the incidents described by complainant in her September 1999 letters
were isolated and not sufficiently severe or pervasive to create a hostile
work environment. As noted in the agency's decision, complainant claimed
she was harassed when her manager stood over her while she work; hollered
at her; interrupted her while speaking with others; snapped at her; and
treated her in an unprofessional manner. We find that these claims, if
true, describe ongoing incidents which would have unreasonably interfered
with complainant's work performance. Moreover, although the agency found
the events to be isolated, the record indicates the alleged harassment
occurred for six months prior to complainant contacting the EEO office
and continued thereafter. Consequently, we find that complainant has
stated a claim of discriminatory harassment.
Claim 2 was also dismissed by the agency for untimely counselor
contact. Volume 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1))
requires that complaints of discrimination should be brought to the
attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant contacted the EEO office on July 26, 1999. A fair reading
of complainant's complaint reflects that complainant alleged that she
was the victim of a comprehensive pattern of harassment that commenced
more than forty-five days prior to her initial EEO Counselor contact
and have continued beyond her initial EEO Counselor contact. Moreover,
in her appeal statement, complainant contends that the harassment is
ongoing, and she describes incidents with her manager which occurred in
August and October 1999. Therefore, we find that because complainant
has alleged a pattern of harassment, including events that occurred both
before and after her Counselor contact, we find the claim is timely.
The agency's decision dismissing claim 2 was improper and is REVERSED.
Claim 2 is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.