01982276_r
03-26-1999
Laurine A. Anderson, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Laurine A. Anderson, )
Appellant, )
)
v. ) Appeal No. 01982276
) Agency No. 98-61339-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was issued on December
30, 1997. The appeal was postmarked January 27, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on October 14, 1997.
On December 5, 1997, appellant filed a formal EEO complaint wherein
she alleged that she had been discriminated against in reprisal for her
previous EEO activity when:
1. On October 10, 1997, her supervisor returned her memo of October 9,
1997, with attacking and insulting remarks.
2. On October 23, 1997, her supervisor questioned her ability to
perform computer specialist duties when he required her to provide medical
documentation for a request for 31 hours of sick leave. Appellant alleged
that this action threatened her security clearance.
3. On October 2, 1997, her supervisor made a decision without discussing
it with her. According to appellant, her supervisor unilaterally decided
that she would provide guidance for the OASIS LAN workload. Appellant
claimed that this matter was handled differently than other projects in
the Joint Oil Analysis Support Program, Technical Support Center.
4. On September 22, 1997, her supervisor stated that she was not getting
her work done due to her performing totally unrelated work.
5. Her supervisor's memo of August 25, 1997 requested that she provide
reasons for not keeping him informed concerning program information
and e-mail. Appellant claimed that the lack of communication and e-mail
was due to her supervisor moving her to building 743.
6. On August 15, 1997, appellant asked her supervisor about new
laptops with docking stations. Appellant stated that in December 1997,
she prepared information for ordering docking stations. According to
appellant, her supervisor told her that there was no money for the
laptops. A few months later three laptops were delivered.
7. On August 14, 1997, other employees noticed that appellant's
requirements are different from that of others in the office. Appellant
claimed that she is required to submit phone logs and hand in project
reports.
8. On July 31, 1997, she was told that she would move to building 743.
According to appellant, she did not have phone lines or data lines for
two months.
9. On July 22, 1997, her supervisor wrote an attacking and inaccurate
memo concerning the Navy Oil Analysis Program tasking. Appellant alleged
that her supervisor wrote his concern that several items, which fall
into her tasking, had not been resolved. Appellant stated that had she
been given the tasking, they would have been resolved immediately.
10. Her supervisor's memo of April 25, 1997 was totally inaccurate.
Appellant claimed that her supervisor took an issue and turned it around
and stated that she had done some things that were not true.
Appellant characterized the agency's treatment of her as harassment.
In its final decision, the agency dismissed appellant's complaint on
the grounds of failure to state a claim. The agency determined that
appellant did not establish that she was harmed with regard to a term,
condition, or privilege of her employment.
On appeal, appellant contends that the alleged incidents constituted
harassment. Appellant also claims that a conflict of interest exists
because the official who dismissed the complaint is the individual who
allegedly discriminated against her.
In response, the agency asserts that appellant was not subjected to
continuous harassment nor was she counseled concerning work matters and
no disciplinary action or performance-based action was ever initiated.
The agency maintains that appellant has not established that she has
suffered a present harm or loss with respect to a term, condition, or
privilege of her employment. With regard to appellant's contention of a
conflict of interest, the agency asserts that the official who dismissed
the complaint acted upon the recommendation of the Human Resources
Office's EEO Department. The agency notes that one of appellant's
supervisor's duties as Activity Head, is to serve as the EEO Officer.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined 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 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the 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.
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).
In the present case, appellant alleges that she was subjected to
harassment when her supervisor criticized her work performance on several
occasions; she had different requirements than other employees; she
was moved to a different office that lacked phone lines and data lines
for two months; and her supervisor made a decision without consulting
her. We note that all of the identified incidents were perpetrated by
appellant's supervisor over a short period of time, i.e., approximately
a six-month period. Viewing the identified incidents set forth in the
complaint in the light most favorable to appellant, we find that appellant
has stated a cognizable claim under the EEOC Regulations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November
12, 1993). Accordingly, the agency's decision to dismiss appellant's
complaint for failure to state a claim was improper. This complaint is
hereby REMANDED for further processing in accordance with the ORDER below.
Finally, we hereby remind the agency that conflicts of position or
conflicts of interest, as well as the appearance of such conflicts
must be avoided. EEO Management Directive 110, at 1-1. Therefore, the
identified responsible official in a complaint should not be involved in
the processing or issuance of any determination regarding the procedural
or merit aspects of that complaint.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations