Donna E. Ramsay, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01982206_r (E.E.O.C. Apr. 28, 1999)

01982206_r

04-28-1999

Donna E. Ramsay, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Donna E. Ramsay, )

Appellant, )

)

v. ) Appeal No. 01982206

) Agency No. 97059

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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., Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The final

agency decision was issued on January 12, 1998. The appeal was submitted

by fax transmission on February 3, 1998. 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

complaint on the grounds that it was not filed in a timely manner and

that it failed to state a claim.

BACKGROUND

Appellant initiated contact with an EEO Counselor on June 23, 1997.

Appellant received counseling from two EEO Counselors, but she was not

issued a Notice of Final Interview. In a formal EEO complaint dated

December 9, 1997, appellant alleged that she had been discriminated

against on the bases of her race (African-American), color (black),

religion (Episcopalian), mental disability (unspecified) and age (56)

when:

1. In May 1997, she went to the Directorate of Civilian Personnel and

discovered that her official personnel file still contained adverse

actions that should have been removed.

2. In June 1997, her supervisor gave her a letter that discussed a

coworker who had used government computers for personal use.

3. Her medical records were requested by a non-FECA employee to determine

her fitness for duty to be reassigned to a new position.

4. A Captain told the union representative that appellant is �a worthless

n---er� and the coworker told her about this in June 1997.

5. Her supervisor told the Command Group she was �worthless.�

6. Her supervisor tracked her down to give her an undesirable performance

appraisal.

7. She did not receive mid-point counseling in 1997.

8. Her reassignment was in jeopardy due to a previous injury.

We note that appellant indicated in her formal complaint that she

considered the aforementioned allegations to constitute harassment.

In its final decision, the agency dismissed appellant's complaint on the

grounds that appellant failed to file her complaint in a timely manner.

The agency determined that on August 12, 1997, appellant agreed to allow

the EEO Counselor until October 17, 1997, to complete the processing

of her complaint. According to the agency, prior to October 17, 1997,

the EEO Counselor informed appellant that she was no longer an EEO

Counselor and the final interview was not completed. The agency stated

that appellant did not initiate contact with another EEO Counselor after

that date. The agency noted that on August 12, 1997, appellant signed the

notice of her avenue of redress, which stated in part that appellant had

a right to file a complaint within fifteen days of the date she received

a notice terminating counseling and her notice of rights, or after the

30th day, if no notice was given. The agency stated that appellant has

filed at least eight discrimination complaints over the years and she

is quite familiar with the EEO process. According to the agency, the

instant complaint was untimely filed even if appellant is allotted thirty

days from October 17, 1997. The agency also dismissed the complaint

on the grounds of failure to state a claim. The agency determined with

regard to each allegation that the alleged incidents do not constitute an

ultimate employment decision. The agency also determined with respect

to allegations 4-5 that the alleged comments were not accompanied by

concrete action and, therefore, were not sufficient to cause harm.

On appeal, appellant contends that in October 1997, she asked the EEO

Counselor for the paperwork, but the EEO Counselor informed her it was

not ready. Appellant states that in October and November 1997, she

called the EEO Office to obtain her paperwork, but she was told that

it was not ready. According to appellant, she acquired her paperwork

from her union representative on December 1, 1997. Appellant states

that on December 8, 1997, she sought to file her complaint, but she was

informed that the EEO Counselor would not be available for one week.

Appellant states that she filed the complaint on December 15, 1997, in

a timely fashion in light of the fact that she was not issued a notice

of final interview. Appellant argues that she had two different EEO

Counselors, who quit during the processing of her complaint, thereby

delaying the processing of the complaint. With regard to the dismissal

of her complaint on the grounds of failure to state a claim, appellant

contends that the agency conducted an improper analysis. According to

appellant, the agency limited its review to a retaliation analysis and it

did not consider the issue of disparate treatment. Appellant argues that

the allegations clearly relate to the terms, privileges and conditions

of her employment.

In response, the agency asserts that each of appellant's allegations

fails to reach the level of an ultimate employment decision such as

hiring, granting leave, discharging, promoting, and compensation.

With regard to allegation 1, the agency maintains that appellant did

not suffer a personal injury due to the presence of the adverse actions

in her official personnel file. Further, the agency states that this

action is not an ultimate employment decision. As for allegation 2, the

agency notes that the letter with regard to a coworker's personal use

of a government computer was not directed at appellant and, therefore,

appellant was not personally harmed. With respect to allegation 3,

the agency asserts that the request for her medical records did not

constitute an ultimate employment decision. With regard to allegation 4,

the agency notes that the alleged comment was to a third person and not

appellant, and was relayed to appellant more than one year after the

comment was allegedly made. The agency asserts that appellant did not

suffer an injury in fact. According to the agency, appellant did not

allege that she was subjected to a hostile work environment, and even

if she had, one incident does not constitute a hostile work environment.

The agency asserts with respect to allegation 5 that a remark or comment

unaccompanied by concrete action does not render appellant aggrieved.

As for allegation 6, the agency argues that appellant initially did

not provide a time when the performance appraisal could be delivered

despite her supervisor's attempts to arrange a meeting. With regard to

allegation 7, the agency maintains that not giving appellant a mid-point

counseling does not constitute an ultimate employment decision. Further,

the agency asserts that appellant has raised the same allegation in two

previous complaints. In allegation 8, the agency states that appellant's

apprehension about a possible future personnel action is not actionable

under 29 C.F.R. �1614.107(e).

With regard to the issue of the timeliness of the complaint, the agency

notes that in the memorandum extending the informal counseling process,

appellant was notified that if a notice of final interview is not

provided and no extension is secured, appellant had the right to file a

formal complaint after the 30th day of the termination of counseling.

The agency states that the extension terminated on October 17, 1997,

and that appellant acknowledges that on an unspecified date in October

1997, she was informed by the EEO Counselor that she was terminating

her counseling due to illness. The agency argues that appellant had the

right to file her formal complaint after the 30th day of the termination

of counseling, but she did not file her complaint until December 17,

1997. According to the agency, appellant displayed a lack of interest

in pursuing her claim. Finally, the agency asserts that its analysis

considered both the issues of reprisal and disparate treatment.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in ��1614.105, 1614.106 and

1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

Upon review of the record, we note that appellant never received a notice

of final interview. Appellant signed an extension that stated that if

no notice is provided and no extension is secured, appellant has the

right to file a formal complaint after the 30th day of the termination

of counseling. We find that this extension did not obligate appellant

to file her formal complaint within a certain time period. A notice of

final interview would have informed appellant that she had fifteen days

from receipt of the notice to file a formal complaint. In light of the

delays appellant experienced during the informal counseling stage and

the lack of a clear filing deadline, we find that it was inappropriate

to dismiss appellant's complaint on the grounds of untimeliness.

Accordingly, the agency's dismissal of the complaint on the grounds of

untimeliness was improper and is REVERSED.

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 case, appellant alleges that she was subjected to

harassment when she discovered that her official personnel file still

contained adverse action documents that should have been removed; her

supervisor gave her a letter about a coworker using government computers

for personal use; her medical records were requested to determine her

fitness for duty to be reassigned to a new position; a Captain told the

union representative that she was �a worthless n---er�; her supervisor

told the Command Group she was �worthless�; her supervisor tracked

her down to give her an undesirable performance appraisal; she did

not receive mid-point counseling in 1997; and her reassignment was in

jeopardy due to a previous injury. With regard to allegation 2, we find

that appellant's receipt of a letter about a coworker using government

computers for personal use did not cause appellant to suffer personal

harm as to the terms, conditions, or privileges of her employment.

With respect to allegation 8, we find that appellant's concern that her

reassignment was in jeopardy does not refer to a specific incident and,

therefore, this allegation also fails to state a claim. However, we

find that allegations 1 and 3-7 should be considered as examples of the

harassment to which appellant has been subjected, rather than as separate

claims of discrimination. Viewing these identified incidents set forth

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

appellant has stated a cognizable claim under the EEOC Regulations.

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

(November 12, 1993).

Accordingly, the agency's decision to dismiss allegations 2 and 8 on

the grounds of failure to state a claim was proper and is AFFIRMED.

The agency's decision to dismiss allegations 1 and 3-7 of appellant's

complaint for failure to state a claim was improper and is REVERSED.

These allegations, as clarified herein, i.e., as incidents of alleged

harassment, are hereby REMANDED for further processing in accordance

with the ORDER below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. 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 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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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. If you

file a request to reconsider and also file a civil action, 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 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations