0120083046
09-29-2008
Julie A. Arthur, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Julie A. Arthur,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120083046
Agency No. 08-54-00114
DECISION
Complainant timely appeals from the June 2, 2008 final decision of the
Department of Commerce (agency), which dismissed her formal 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.
For the following reasons, the Commission reverses the agency's final
decision.
On April 24, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed discrimination on the basis of her sex
(female) in that she was subjected to harassment or a hostile work
environment when:
1. On March 12, 2008, complainant's supervisor told her she was failing
and proposed to place complainant on a Performance Improvement Plan
(PIP);
2. Starting in August 2003, complainant's supervisor held numerous
meetings with complainant in which the supervisor "made belittling,
threatening and disrespectful statements" while discussing issues of
product timeliness and decision-making;
3. Complainant's supervisor applied a different standard to evaluate
her work compared to similarly-situated male coworkers;
4. The supervisor's attitude toward complainant's taking leave created
an environment in which complainant was reluctant to request leave from
her supervisor to care for her husband and child.
The agency dismissed the complaint for failure to state a claim, finding
that the alleged incidences (1) did not affect a term, condition,
or privilege of employment, and (2) were not sufficiently severe or
pervasive to sustain a claim of harassment. As a preliminary matter,
the agency determined that complainant brought only claim 1 to the
attention of the EEO Counselor but subsequently raised her other claims
in the formal complaint. Nevertheless, the agency proceeded to consider
all of complainant's claims in its final decision. With respect to
the supervisor's comments, the agency concluded that the comments were
not "sex-based," rather, the comments dealt with complainant's work
performance.
On appeal, complainant contends that (1) the agency fragmented
complainant's claim of harassment/hostile work environment in a
piecemeal manner, and (2) the allegations in her complaint, if true,
are sufficiently severe or pervasive to constitute a harassment/hostile
work environment claim.1
As a preliminary matter, with regard to claims not brought before an EEO
counselor, 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990). In this case, the
Commission notes that claims 2 - 4 are like or related to claim 1 because
they add or clarify the context of the supervisor's statements in the
March 12, 2008 meeting and proposed PIP, and could have reasonably been
expected to grow out of the original complaint during the investigation.
A hostile work environment claim is comprised of a series of separate
acts that collectively constitute one unlawful employment practice.
National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at 115.
When a complainant does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable if the alleged 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.
Further, the Commission has consistently held that when confronted
with claims like this, the agency cannot ignore the pattern aspect of
the claim and define the issues in a piecemeal manner. See Ferguson
v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999);
Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November
3, 1994). The trier of fact must consider all of the alleged harassing
incidents and remarks together in the light most favorable to the
complainant, in order to determine whether they are sufficient to state
a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Applying these principles to this case, the Commission first finds
that the agency did not fragment complainant's claims. In the analysis
portion of its final decision, the agency explicitly considered whether
the combination of all of complainant's claims was sufficient to state
a claim of actionable harassment.
However, the Commission finds that the agency erred in dismissing the
complaint for failure to state a claim. A fair reading of the record
is that complainant asserts a pattern of ongoing harassment dating back
to August 2003, including alleged incidents where a supervisor made
belittling, threatening, and disrespectful statements to complainant,
held complainant's work performance to a different standard compared
to her male colleagues, and created an environment where complainant
was reluctant to ask her supervisor for leave. If true, this pattern
of actions could be sufficient to state a claim of a hostile work
environment.
Accordingly, the Commission reverses the agency's final decision
dismissing the instant formal complaint and remands all of complainant's
claims to the agency for further processing in accordance with the order
below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
September 29, 2008______________
Date
1 In her brief on appeal, complainant includes a document titled
"Chronology of Events" that does not appear to be a part of the original
complaint file.
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0120083046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036