Kathleen D. Reilly, Complainant,v.Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a50294 (E.E.O.C. Mar. 15, 2005)

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).