01a50294
03-15-2005
Kathleen D. Reilly, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Kathleen D. Reilly v. Department of the Air Force
01A50294
03-15-05
.
Kathleen D. Reilly,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A50294
Agency No. 9H1C04015
DECISION
Kathleen D. Reilly (complainant) filed an appeal from the August 27, 2004,
final decision of the Department of the Air Force (agency) dismissing the
above-referenced complaint. Complainant claimed a violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
In a formal complaint, complainant claimed discrimination based on
reprisal when she was harassed and subjected to a hostile work environment
in 2004.<1> In its final decision, the agency dismissed the complaint
for failure to state a claim but without a definition of the complaint and
an explanation why it did not state a claim. For the following reasons,
the Commission reverses the agency's decision and remands the complaint
for processing.
Failure to State a Claim
The Commission's regulations mandate that agencies accept complaints from
aggrieved employees or applicants for employment who believe that they
have been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. �
1614.103; �1614.106(a). The Commission's federal sector case precedent
defines 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). We disagree with the agency and find that
complainant, in fact, stated a claim under our regulations. Taken as a
whole and without fragmentation into specific events, complainant claims
that agency managers engaged in a systematic pattern of alienating her
and impeding her ability to perform the duties of her assigned job;
excluded her from routine communications and meetings; and transmitted
directions and information indirectly and through subordinate staff.
She further stated that these actions so seriously affected her that
she was forced to take a medical leave of absence.
The EEO Counselor's Report, including a supplementary report by the EEO
Manager, noted that complainant "had not indicated specific incidents
with dates to support her allegation." After she had identified several
events, the Manager sought responses to each event from agency management.
In the matter before us, the agency has treated complainant's complaint
as a series of individual, discreet events. In framing her issues as
individual episodes, the agency fragments the impact of complainant's
overall claim of harassment. While the Commission's regulations
assign agencies the responsibility for identifying and framing the
issues raised during initial EEO processing, agencies may not ignore
the totality of the circumstances where complainants raise allegations
of a hostile work environment. See EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994), at
4-6; also see Toole v. EEOC, EEOC Appeal No. 01964702 (May 22, 1997).
Here, complainant's claim sets out a claim of harassment by agency
management, which must be addressed.<2>
Agency Final Decision
The Commission's regulations required that an agency issue a final
decision when it dismisses an entire complaint. 29 C.F.R. � 1614.110(b).
That provision sets out the requirement that "the final decision shall
consist of findings by the agency on...the rationale for dismissing any
claims in the complaint." Ibid. The decision letter neither informed
as to the complaint nor provided the rationale for its dismissing,
with a cite to the pertinent section of our regulations. The decision
issued in this matter does not comport with the requirements of the
Commission's regulations or EEOC Management Directive 110 (November 9,
1999), Chapter 5, � I. (5-1).<3>
After a review of the record, including statements and arguments not
addressed herein, based on the reasons above, we find that the agency
erred when it dismissed the complaint.
CONCLUSION
Accordingly, the agency's decision was is REVERSED, and the agency is
directed to comply with the Order, below.<4>
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.
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
_____03-15-05_____________
Date
1Complainant claimed that because of a sexual harassment complaint filed
against her supervisor in June 2003, agency managers took actions that
marginalized her.
2Even when a claim does not challenge a specific agency action(s) or
inaction(s) regarding a term, condition, or privilege of employment,
the claim may still state a claim under Part 1614, if the complaint's
claims are sufficient to state a hostile or abusive environment claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), 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).
3MD-110 also states that the agency, after it has acknowledged receipt
of the complaint, should, within a reasonable time, send a second letter
stating the claims asserted ("the acceptance letter"). Ibid. No such
letter defining the issues herein was found in the record.
4In her appeal statement, complainant raises additional actions by the
agency, i.e., a RIF and job elimination. Upon notification from the
agency of the remand of this complaint, complainant may contact the
EEO office to add these matters as amendment to her complaint. See 29
C.F.R. � 1614.106(d).