01A03028
03-27-2001
Elva A. Cooper, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Elva A. Cooper v. Department of the Army
01A03028
March 27, 2001
.
Elva A. Cooper,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A03028
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 15, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency defined the complaint as alleging complainant was subjected
to discrimination on the bases of sex (female) and national origin
(Hispanic) when:
Complainant was issued a poor performance appraisal for 1998 - 1999;
On December 28, 1999, a counseling session was held with complainant
concerning work requirements which complainant felt were unattainable
goals and created a hostile work environment:
Complainant was required to notify staff neurologists of her arrival at
work each morning. The issue of complainant documenting time periods
of more than 20 minutes away from work stations was discussed by not
adhered to;
Complainant was required to put-in a full 8-hour workday, 0800 - 1630
with a half-hour lunch;
Complainant was required to be assigned clerical tasks during the
half-hour period she worked at the front desk; and
Complainant was required to perform Multiple Sleep Latency Tests and
obtain normative data for the evoked potential machine and was reminded
to seek out instruction from the sleep laboratory Registered Technicians;
Complainant was subjected to a hostile work environment since 1998 when:
Complainant's time card was altered with a doctor (Doc1) approval after
complainant initialed it. To settle the issue, another doctor (Doc2)
was assigned to approving authority over complainant's time card;
Doc2 approached complainant and aggressively questioned complainant's
entries with a loud, accusing tone of voice;
Complainant suffered disparate treatment when Doc2 did not question
other employees' entries to time cards. Complainant was docked for time,
whereas other employees were not;
Doc2, in contempt of complainant, submitted complainant's time sheet
one week late on January 20, 2000.
Complainant suffered sexual harassment when Doc1 placed a post card
on complainant's desk of muscular men in �Speedos,� in the summer of
1999, and then presented complainant, in front of the office employees,
a chippendale calendar of semi-nude men on December 17, 1999.
The agency dismissed the entire complaint for failure to state a claim.
Specifically, the agency found that the claims did not amount to an
ultimate employment action affecting a term, condition, or privilege
of employment. The agency noted that Title VII was not designed to
address every event that might have some tangential effect on ultimate
employment decisions. Alternatively, the agency dismissed (3) (a) -
(c) for untimeliness. The agency noted that the incidents occurred
between 1998 and November 1999.
On appeal, complainant argues that she has suffered ongoing hostile work
environment and sexual harassment since Doc1 arrived at her work site.
In response, the agency asserts that to reverse their decision would
result in using Title VII for a workplace civility code. The agency
also contends that the claims are not severe or pervasive enough to
justify an actionable claim of harassment.
The record includes a copy of complainant's formal complaint, dated
February 3, 2000. Therein, complainant alleged that she received
excellent performance appraisals until Doc1 arrived. Since then, she
claims that she received a poor performance appraisal for 1998-1999; was
given unattainable performance goals; was subjected to a hostile work
environment by being watched �minute by minute,� was given a postcard
of semi-nude males, and was presented with a �Chippendale� calendar of
semi-nude male dancers in front of her co-workers.
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).
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).
Complainant states that the hostile work environment is detrimentally
affecting her ability to perform her job. Included in these claims,
complainant essentially claims that she is subjected to increased scrutiny
-- being watched �minute-by-minute.� Ongoing increased scrutiny, by
itself, can state a claim of harassment. See Schwartz v. United States
Postal Service, EEOC Request No. 05960294 (June 28, 1996)(complaint
regarding constantly being followed and watched by a supervisor states a
claim); Carter v. United States Postal Service, EEOC Request No. 05960264
(June 13, 1996) (claim that the supervisor "as a habit" assigns two
people to observe complainant unload trucks states a claim).
Taken separately, some of the other incidents may not state a claim.
However, when all of the claims are viewed together, a reasonable person
might view complainant's work environment as hostile or abusive. As such,
complainant may be able to prove that her work environment has altered
the terms, conditions, or privileges of her employment. Therefore,
the agency's dismissal for failure to state a claim was improper.
Concerning timeliness, the agency dismissed several incidents
that are part of a single harassment claim. The agency's dismissal
effectively fragments the harassment claim. In the present case, the
agency improperly defined the claims separately, and addressed them
in a piecemeal manner. When properly recast, the incidents dismissed
are evidence of an overriding harassment claim. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
5-5 (November 9, 1999). Once properly defined, the harassment claim
is timely.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claims are
REMANDED for further investigation.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 27, 2001
__________________
Date