Kerry G. Stewart, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 26, 2001
01A05506 (E.E.O.C. Jun. 26, 2001)

01A05506

06-26-2001

Kerry G. Stewart, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Kerry G. Stewart v. Department of Veterans Affairs

01A05506

June 26, 2001

.

Kerry G. Stewart,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05506

Agency Nos. 99-0893, 200H-1602

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated July 5, 2000, dismissing her complaints of unlawful

employment discrimination. Complainant filed her first EEO complaint

on January 22, 1999, Agency Case No. 99-0893, alleging that she was

subjected to general harassment and a hostile work environment on the

basis of reprisal for prior EEO activity when:

On November 4, 1998, complainant's supervisor (S1) placed her in

a loading position which allegedly violated an August 24, 1998 EEO

settlement agreement; and

On November 24, 1998, (S1) criticized her work and degraded her in

front of coworkers.

On May 14, 1999, the agency dismissed issue (2) pursuant to 29 C.F.R. �

1614.107(a)(1), for failure to state a claim and forwarded issue (1) to

the agency's Office of Resolution Management for a breach determination.

With regard to issue (2), the agency stated that this issue was an

isolated incident which did not rise to the level of an actionable hostile

working environment. Complainant filed an appeal to the Commission

regarding the agency's dismissal of issue (2). With regard to issue

(1), the agency issued a decision on July 15, 1999, finding that it

was not in breach of the August 24, 1998 settlement agreement.<1>

On December 10, 1999, the Commission remanded the dismissed portion

of complainant's complaint back to the agency for processing with the

remainder of the complaint. The agency accepted the remanded portion

without realizing that the remainder had been resolved via the July 15,

1999 agency decision.

On February 14, 2000, complainant filed a second formal complaint, Agency

Case No. 200H-1602. In the second complaint, complainant alleged that she

was subjected to general harassment and a hostile work environment when:

On November 13, 1999, the agency controverted complainant's workers'

compensation claim, which was subsequently denied by the Department of

Labor on December 23, 1999;

On December 21, 1999, the Food Service Coordinator (Person A) contacted

complainant via telephone and asked her to apologize to a coworker (E1)

as a resolution of his EEO complaint; and

On December 29, 1999, the Food Service Foreman (Person B) denied that

he indicated on a CA-1 form that complainant's shoulder injury was not

incurred in the performance of her job duties.

On March 24, 2000, the agency decided that the information raised in Case

No. 200H-1602 was additional evidence in support of complainant's original

complaint, Case No. 99-0893, and therefore added the new information

to the original complaint. The revised claim is defined by the agency

as a claim that complainant was subjected to general harassment and a

hostile work environment when:

On November 24, 1998, complainant's supervisor (S1) criticized her work

and degraded her in front of her coworkers;

On November 13, 1999, the agency controverted complainant's workers'

compensation claim, which was subsequently denied by the Department of

Labor on December 23, 1999;

On December 21, 1999, the Food Service Coordinator (Person A) contacted

complainant via telephone and asked her to apologize to a coworker (E1)

as a resolution of his EEO complaint; and

On December 29, 1999, the Food Service Foreman (Person B) denied that

he indicated on a CA-1 form that complainant's shoulder injury was not

incurred in the performance of her job duties.

The agency issued a decision on July 5, 2000, in which it dismissed

complainant's complaint for failure to state a claim. In its decision,

the agency dismissed issue (1) for failure to state a claim on the same

grounds as previously stated in its May 14, 1999 decision. With regard

to issues (2) and (4), the agency stated that these issues involved an

impermissible attack on the workers' compensation process. The agency

dismissed issue (3) for failure to show a harm or loss to a term,

condition, or privilege of employment. Specifically, the agency

argued that the incident described in issue (3) was an attempt to

resolve a coworkers EEO complaint and thus, could not serve as a basis

for complainant's EEO complaint. Further, the agency stated that the

alleged incidents identified by complainant were not severe or pervasive

to alter the conditions of her employment.

On appeal, complainant states that as a result of her assignment to the

tray line on November 4, 1998, pursuant to the August 24, 1998 settlement

agreement, several workers began to make comments that she received

special treatment and made negative comments about her work assignments

and duties. Complainant claims that the derogatory statements made by her

supervisor on November 24, 1998, resulted in increased harassment from her

coworkers regarding her reassignment and new duties. Complainant claims

that she is subjected to harassment on a weekly basis and she states that

despite repeated reports of the hostile work environment to management,

no action has been taken.

Upon review of the record, we find that the agency properly dismissed

issues (2) and (4) for failure to state a claim. Complainant's formal

complaint and other correspondence with the agency indicate that she is

challenging the Office of Workers' Compensation Program (OWCP) denial

of her workers' compensation claim. Complainant's challenge of an OWCP

decision is not within the Commission's jurisdiction.

In issue (3) complainant claims that she was subject to harassment when

Person A requested that she apologize to E1. The record reveals that on

December 1, 1999, Person A contacted complainant in response to an EEO

complaint filed by Employee 1 and asked complainant to apologize to E1 as

a resolution of his EEO complaint. The agency states that this incident

was an attempt to resolve E1's EEO complaint. Furthermore, the agency

states that this incident was not sufficiently severe or pervasive to

alter the conditions of complainant's employment. Complainant claims

that the request that she apologize to E1, a person who complainant

alleged had physically attacked her, was another form of harassment.

Upon review, we find that the agency properly dismissed issue (3) for

failure to state a claim. Issue (3) appears to concern the agency's

attempts to informally resolve an EEO matter. As a matter of law, a

settlement offer does not give rise to a viable allegation. Such offers

do not adversely affect a term, condition or privilege of employment.

Further, in the Commission's view, settlement negotiations, including any

statements and proposals made therein, are to be treated as confidential

and privileged in order to facilitate candid interchange to settle

disputes informally. To allow complainant to base a new complaint on

a settlement offer would defeat this purpose. Montague v. Department

of the Army, EEOC Request No. 05920321 (September 16, 1997), citing

Olitsky v. Spencer Gifts, Inc., 843 F.2d 123, (5th Cir.), cert. denied,

488 U.S. 925 (1988). Furthermore, we note that to the extent that

complainant is challenging the filing of a complaint by a coworker,

the Commission has held that the filing of an EEO complaint by another

individual does not constitute an injury to a term, condition, or

privilege of complainant's employment. The processing of a complaint

by an employee, wherein the employee challenges the filing of an EEO

complaint by a coworker or other agency employee, would have a chilling

effect on the filing of EEO complaints by aggrieved persons. See Blinco

v. Department of the Treasury, EEOC Request No. 05940194 (May 26, 1994).

Finally, with regard to issue (1), we find that the agency improperly

defined this issue. The Commission finds that based on complainant's

formal complaint, the EEO Counselor's report, and other documents,

complainant alleged that she was subjected to harassment which began

when she was reassigned on November 4, 1998, and intensified when her

supervisor criticized her work and degraded her in front of coworkers on

November 28, 1998. On appeal, complainant cites several incidences of

allegedly hostile statements made from coworkers following the November

28, 1998 statement and claims that her coworkers make these statements

on a weekly basis. Furthermore, complainant indicates that she has

contacted management on several occasions to remedy the situation, but

that no actions have been taken by management to resolve the problem.

The Commission finds that complainant has stated a cognizable claim of

harassment as defined above.

Accordingly, the agency's dismissal of issue (1) was improper and is

REVERSED and this issue is REMANDED for further processing in accordance

with the Order below. The agency's dismissal of issues (2), (3), and

(4) was proper and is AFFIRMED.

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 (M0900)

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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (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

June 26, 2001

__________________

Date

1There is no evidence in the record that

complainant filed an appeal from the agency's July 15, 1999 breach

determination.