01993527
06-30-2000
Edith M. Harris, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Edith M. Harris, )
Complainant, )
)
v. ) Appeal No. 01993527
) Agency No. 99-4026
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1> Complainant alleged that she was discriminated
against on the bases of sex (female), physical and mental disability,
and in reprisal for prior EEO activity when she was subjected to a
hostile work environment from September 1997 through September 1998.
On March 5, 1999, the agency issued its final agency decision (FAD)
dismissing complainant's complaint for failure to state a claim.
The FAD found that six of the nine events alleged by complainant in
her harassment claim were not true. Further, the FAD found that in the
remaining incidents raised, complainant failed to demonstrate that she
suffered a harm. Finally, the FAD found that after reviewing the nine
incidents of harassment, as a whole, complainant did not present an
actionable claim of a hostile work environment.
It is from this FAD complainant appeals. In her appeal, complainant
argues that she provided all the evidence necessary to state a claim of
a hostile work environment and that the agency believed her manager,
the alleged harasser, over her affidavits. The agency responded to
complainant's appeal by arguing that complainant's claims were clearly
mistaken, that the events did not occur as complainant alleged, and
that these isolated incidents do not rise to the level of harassment
actionable under the law.
Upon review of the record, the Commission finds that the FAD concluded
that complainant was incorrect in her allegations. In dismissing these
claims in such a manner, the agency has determined that these claims
raised by complainant are not true. This goes to the merits of the
complaint and is irrelevant to the procedural issue of whether complainant
has stated a justiciable claim under the regulations. See Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August 15,
1991). Therefore, we find that the agency has acted prematurely in
addressing the merits of complainant's complaint without having first
conducted a factual investigation and providing complainant the right
to request a hearing before an EEOC Administrative Judge. Accordingly,
the agency's final decision dismissing complainant's complaint for
failure to state a claim was improper.
Further, the FAD found that the claims taken as a whole do not rise to the
level of harassment. 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.
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, complainant alleges that she was subjected to
harassment by principally the Manager. The alleged harassment occurred
from September 1997 through September 1998, consisting of denial of leave,
verbal attacks, and work assignments concerns, which purportedly created
a hostile work environment. Considering that the alleged identified
actions were all perpetrated by the Manager, that they occurred over
a relatively short period of time, and viewing the identified remarks
and actions in the light most favorable to complainant, we find that
complainant 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
complainant's complaint for failure to state a claim was improper and
the FAD is REVERSED and the complaint REMANDED for further processing
in accordance with the proper regulations and the order below.
ORDER
The agency is ORDERED to resume processing of the complaint from the point
processing ceased 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 notify the complainant that it has resumed processing
the complaint. A copy of the agency's letter notifying complainant of the
processing of the complaint must be submitted to the Compliance Officer,
as referenced below. The agency shall also issue to complainant a copy of
the investigative file and notify complainant of the appropriate rights.
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 continuing of the processing 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:
June 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal 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.