01A31326_r
08-19-2003
Iris V. Altman, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Iris V. Altman v. Social Security Administration
01A31326
August 19, 2003
.
Iris V. Altman,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A31326
Agency No. 03-0031-SSA
DECISION
In an EEO complaint dated October 21, 2002, complainant, a Service
Representative Trainee, GS-7, claimed that she was discriminated against
on the bases of her disability (unspecified), national origin (Hispanic),
race (Hispanic), and in reprisal for her previous EEO activity under
Title VII and the Rehabilitation Act. The agency defined the incidents
set forth in the complaint as being: (1) on July 25, 2002, complainant's
immediate supervisor stood behind her while she was assisting an agitated
claimant. Complainant claimed that she interpreted her immediate
supervisor's actions as harassment, and that her immediate supervisor
embarrassed her in front of the claimant; and (2) on September 5, 2002,
the immediate supervisor confronted the complainant about a folder
of claimant information, on which the complainant had been assigned
to work. The immediate supervisor allegedly then took the folder from
the complainant and refused to return it to the complainant so she could
work on it.
By final action dated December 9, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state
a claim. The agency determined that complainant had not established that
she suffered harm to a term, condition, or privilege of her employment
as a result of the alleged actions.
On appeal, complainant contends that she was subjected to a
discriminatory hostile work environment and that the agency did not
consider her complaint in its totality. Complainant cites numerous other
incidents to support her claim that the two incidents cited in her formal
complaint must be considered hostile and abusive. Among these additional
incidents are that she was told by her manager that he knows her race is
excitable and also that she was told that she has an attitude problem
and is refused assistance when she asks her immediate supervisor a
work-related question. Complainant states that her immediate supervisor
publicly embarrasses her in front of her coworkers when he ridicules
her flatulence problem. According to complainant, her immediate
supervisor makes fun of her accent by pretending not to understand her
and constantly asking her to repeat herself. Complainant states that
on several occasions her immediate supervisor has followed her around
the office yelling at her in full view of her peers and the public.
Complainant claims that her immediate supervisor ridicules her physical
appearance and constantly criticizes her for being too loud and excitable.
According to complainant, her manager informed her that if she ever
exhibited unprofessional behavior again, he would institute the most
severe punishment possible.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court found that harassment is actionable, even absent a claim that
any agency's action harmed complainant in a specific term, condition,
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as 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). Moreover, the Commission takes a very broad view of
reprisal claims. As set forth in the EEOC Compliance Manual, EEOC Order
No. 915.003, �Retaliation,� p. 8-15 (May 20, 1998), claimed retaliatory
actions are not restricted to those which affect a term or condition
of employment, and may include any action which is reasonably likely to
deter protected activity.
Here, we find that the agency improperly framed and dismissed the
instant complaint. A clear reading of the complaint and the EEO
Counselor's report evidences that complainant is claiming the presence
of a hostile work environment based on the alleged incidents of July
25, 2002 and September 5, 2002, and also the other alleged incidents
that complainant referenced both during informal EEO counseling and in
her appeal. It is clear that complainant did not intend to claim the
July 25, 2002 and September 5, 2002 incidents as isolated incidents,
but rather as part of a pattern of ongoing harassment against her.
Considering these claims as a whole, in the light most favorable to
complainant, we find that she has stated a cognizable claim of harassment
due to a hostile work environment. See Cervantes v. United States Postal
Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's dismissal of the complaint on the grounds of
failure to state a claim was improper and is REVERSED. This complaint,
as defined in this decision, is REMANDED to the agency for further
processing pursuant to the Order below.
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
August 19, 2003
__________________
Date