01973205
02-24-1999
Frances V. Ransom, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Frances V. Ransom v. Department of the Treasury
01973205
February 24, 1999
Frances V. Ransom, )
Appellant, )
) Appeal No. 01973205
v. ) Agency Nos. 94-4146
) 94-4201
Robert E. Rubin, ) 94-4244
Secretary, ) 95-4002
Department of the Treasury, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated January 10, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (e). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues raised in this appeal are whether the agency properly
dismissed 14 of the appellant's allegations for failure to state a
claim and portions of three allegations on the ground that they were
preliminary steps to taking a personnel action.
BACKGROUND
According to the final agency decision, the agency terminated the
appellant's employment, effective August 17, 1996, after the appellant had
been on leave since June 7, 1994, and in leave without pay status since
July 18, 1994. The allegations at issue in this appeal involve alleged
discrimination based on the appellant's disability (manic-depressive
disorder) and retaliation (prior EEO activity) during a period of time
(from March 15, 1994, through August 15, 1994)immediately preceding and
following the purported beginning of the appellant's lengthy absence
from work.
The decision defined 22 allegations raised by the appellant in four
complaints which the agency consolidated for decision. The decision
dismissed allegations 1-6 of complaint number 94-4146; allegations 1, 5,
and 6 of complaint number 94-4201; allegations 5, 6, and 8 of complaint
number 94-4244; and allegations 1 and 2 of complaint number 95-4002
for failure to state a claim. The decision also dismissed allegation
2 of complaint number 94-4201, portions of allegation 6 of complaint
number 94-4201, and allegation 8 of complaint number 94-4244, on the
ground that they were preliminary steps to taking a personnel action,
that is, the appellant's termination. The decision also found that these
same allegations were inextricably intertwined with, and subsumed by,
the appellant's removal from agency employment. The decision indicated
that the appellant could raise these allegation as pretext arguments in
her removal complaint (agency number 97-4025M).
On appeal, the appellant contends that the agency's practice of
unnecessarily demanding medical information from individuals with
disclosed disabilities violates the Rehabilitation Act, as amended in
1992. The appellant also contends that her complaint states claims
of adverse employment actions, including the denial of assignments,
increased scrutiny and monitoring of work performance, singling her
out for assignment to a supervisor known for disciplining disfavored
employees, and removing personal items (including EEO materials) from
her work area. The appellant further contends that her allegations state
a claim of ongoing disability-related harassment.
ANALYSIS AND FINDINGS
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved
due to an unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et
seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,
as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &
Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because
Title VII's prohibition of discrimination with respect to an employee's
"terms, conditions, or privileges of employment" includes benefits that
are part of an employment contract and benefits which an employer chooses,
but is not required, to provide its employees).
However, even where a complaint does not challenge an agency action
or inaction regarding hiring, termination, compensation, or any other
specific term, condition, or privilege of employment, the complaint may
still state a claim if the complaint allegations are sufficient to state
a hostile or abusive environment claim. Id., citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if it
is sufficiently severe or pervasive to alter the conditions of the
complainant's employment). A complainant is not required to use any
specific words or phrases to state a hostile or abusive work environment
claim. Instead, a complainant must allege facts which, when considered
together and assumed to be true, indicate that the complainant may have
been subjected to discriminatory harassment that was sufficiently severe
or pervasive to alter the conditions of his or her employment. Cobb,
supra.
In addition, a complaint may state a retaliation claim if the alleged
statements or adverse treatment, if not fully remedied and prevented from
recurring, would likely deter future protected activity by the complainant
or other employees. See Section 8 of the Commission's new Compliance
Manual on "Retaliation;" and 29 C.F.R. �1614.102(a)(3) and (6).
A complainant does not have to prove his or her claim in order to
state a claim under 29 C.F.R. Part 1614. Jackson v. Department of the
Air Force, EEOC Request No. 05960524 (April 24, 1997). Accordingly,
the Commission repeatedly has reversed agencies' dismissals for failure
to state a claim where the agency based the dismissal on its view of the
ultimate merit of the complaint allegations. See, e.g., Franz v. Treasury,
EEOC Request No. 05950734 (April 29, 1996) (agency's argument that the
complainant was not disparately treated went to the merit of his claim);
Ernst v. Treasury, EEOC Request No. 05950131 (March 7, 1996) (the agency's
argument that the denied detail was to a lower-grade position with fewer
responsibilities and less opportunities for promotion went to the merits
of the complaint); Hagan v. Department of Veterans Affairs, EEOC Request
No. 05920709 (January 7, 1993) (agency wrongfully dismissed allegation
of disparate treatment in the payment of licensing fees based on the
ground that the agency could not pay an employee's licensing fees); Cann
v. United States Postal Service, EEOC Request No. 05920861 (December 31,
1992) (agency wrongfully dismissed allegation that the agency failed
to upgrade an employee to full-time regular status on the ground that
there were no full time positions available to him under the terms of
the collective bargaining agreement); Ferns v. Department of the Army,
EEOC Request No. 05920597 (September 10, 1992) (agency's argument that
the complainant was ineligible for position goes to the merits of the
complaint).
After reviewing the entire record, the Commission finds that the agency
improperly dismissed 12 allegations based on its view of the ultimate
merit of the complaint allegations: allegations 1 (assignments), 2
(inappropriate discussion of her medical condition), 3 (request for
medical documentation), 4 (increased scrutiny of job performance), and 5
(exclusion from CPA certification activities) of complaint number 94-4146;
allegations 1 (removal of personal items from the appellant's work area),
5 (requesting additional medical information), and portions of 6 (in May
and June 1994, isolating her from her co-workers, scrutinizing her work
more closely, communicating with her in a threatening and unprofessional
manner) of complaint number 94-4201; allegations 5 (restricting access
to the Personnel Office, vacancy announcements, personnel regulations
and the agency manual), 6 (Personnel Office employees refused to assist
her), and 8 (in June and July 1994, communicated with her in a threatening
and unprofessional manner) of complaint number 94-4244; and allegation 1
(on August 15, 1994, refused admission to the Personnel Office to submit
an application for reassignment) of complaint number 95-4002.
The Commission finds that the appellant's claims regarding requests
for medical information and wrongful disclosure of medical information
states claims in part because Congress amended the Rehabilitation Act,
effective October 29, 1992, to make the nonaffirmative action employment
discrimination standards of the American with Disabilities Act, 42
U.S.C. 1121 et seq., applicable to the Rehabilitation Act. See Robinson
v. United States Postal Service, EEOC Request No. 05940034 (September 16,
1994) at n.1; and Lembitz v. United States Postal Service, EEOC Request
No. 05931150 (July 28, 1994). Therefore, the Commission's regulations
in 29 C.F.R. Part 1630 are applicable to disability claims under 29
C.F.R. Part 1614, arising after October 29, 1992. In addition, the
Commission finds that the appellant's allegations of disparate treatment
in access to Personnel Office services state claims of disparate treatment
regarding a privilege of employment.
The Commission further finds that the agency wrongly considered allegation
6 of complaint number 94-4201 and allegation 8 of complaint number 94-4244
as discrete allegations of harassment, instead of addressing whether the
appellant's allegations, when viewed together and assumed to be true,
state a hostile work environment claim. Applying this standard, the
Commission finds the appellant has alleged facts which, if proven true,
indicate that she may have been subjected to discriminatory harassment
that was sufficiently severe or pervasive to alter the conditions of
her employment.
In finding that the appellant's consolidated complaints state a hostile
work environment claim, the Commission has considered allegation 2 of
complaint number 94-4201, portions of allegation 6 of complaint number
94-4201, and allegation 8 of complaint number 94-4244. Allegations
of allegedly harassing actions may not be dismissed pursuant to 29
C.F.R. �1614.107(e)on the ground that the actions were merely preliminary
to a personnel action because the allegedly harassing actions have already
adversely affected the complainant).See Bruce D. Henry v. United States
Postal Service, EEOC Request No. 05950229 (November 22, 1995).
The Commission affirms the agency's dismissal of allegation 6 of complaint
number 94-4146 and allegation 2 of complaint number 95-4002. These
allegations concern the agency's alleged failure to provide adequate
counseling on the appellant's informal complaints but do not state
claims of discrimination or retaliation regarding a term, condition,
or privilege of employment.
Finally, the Commission agrees with the agency that allegation 6
(refusal to provide the appellant with reasonable official time and
resources to prepare for and meet with EEO Officials) of complaint number
94-4201 does not state a claim of employment discrimination. However,
the appellant is entitled to a reasonable amount of official time, if
otherwise on duty, to prepare her complaints and to respond to agency and
EEOC requests for information. See 29 C.F.R. �1614.605(a). A complainant
does not have to prove that the denial of requested official time was
discriminatory. Therefore, the Commission finds that allegations 6 of
complaint number 94-4201 states an official time claim. Accordingly,
the Commission reverses the agency's dismissal of that allegations.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 6 of complaint number 94-4146 and allegation 2 of
complaint number 95-4002; REVERSES the agency's dismissal of all other
allegations; and REMANDS these allegations to the agency for processing
as ORDERED below.
ORDER
(1) The agency is ORDERED to forward a copy of the record, including all
relevant information pertaining to the appellant's official time requests,
to the Commission's San Francisco Office. The letter transmitting the
record shall request that the remanded allegations be assigned for
hearing. The letter shall also request that the remanded allegations
be consolidated with allegations currently pending in the San Francisco
Office under assigned case numbers 370-97-2488X (agency number 94-4201)
and 370-97-2489X (agency number 94-4244), if possible.
(2) The agency shall send copies of the transmittal letter to the
appellant, the appellant's attorney, and the Compliance Officer as
referenced below.
(3) The agency is ORDERED to complete the actions described in paragraphs
1 and 2 of the Order within thirty (30) calendar days of the date this
decision becomes final.
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� (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. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
Feb 24, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations