01970884
02-24-1999
Mahesh C. Sikka, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Mahesh C. Sikka v. Department of Defense
01970884
February 24, 1999
Mahesh C. Sikka, )
Appellant, )
)
v. ) Appeal No. 01970884
) Agency No. 96-LE-MS05
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 decision was issued on October 2, 1996.
The appeal was faxed on November 13, 1996. Accordingly, the appeal is
considered timely<1> (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On August 6, 1996, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases
of race, national origin, and reprisal. Appellant appended to his
formal complaint an eleven page statement that addressed numerous
incidents of alleged discriminatory action by various agency parties.
The incidents included alleged abusive language by employees and the
agency's purported failure to take any action when these matters were
brought to its attention. Appellant stated that "management's goal is
to create a harassing and hostile work environment" for him.
On October 2, 1996, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint was comprised of
nine allegations. The agency accepted the following allegation for
investigation:
On May 27, 1996, you received a formal reprimand from your first line
supervisor.<2>
The agency identified the remaining eight allegations in the following
fashion:
a. You allege that you were insulted by [a co-worker] on May 6, 1996.
You allege that he insulted you during a telephone conversation that he
had . . . on May 6, 1996.
b. You allege that you were discriminated against when [an agency
employee] was appointed as "acting Chief, Project Definition Branch"
for the period 21 - 23 May 1996. You allege that [the agency employee]
is not qualified to act as supervisor on behalf of [an agency official].
c. Your supervisor . . .reviewed your work, i.e., Trip Report Sierra,
AD, McClellan AFB and Point Mugu, and made comments for improvement.
You allege that his comments are invalid, have no value, and do not
provide a benefit to the government.
d. On May 20, 24, and 25, 1996, you allege discrimination when your
first-line supervisor . . .provided comments to your work on the Fort
Lee Commissary Review. You felt his comments were invalid, that clarity
was not needed, and that his comments did not provide a benefit to the
government.
e. You allege that . . . your first-line supervisor provided
changes/comments to your work on the Naval Air Station, Brunswick
Commissary Relocation project that were invalid and not required.
f. You allege that on May 21 and 24, 1996, you were insulted by [an
agency official] when he allegedly said to you "I want to see a Fort
Lee commissary project out by next week."
g. You allege that on May 28, 1996, you were insulted by [an agency
official] when he allegedly threatened you by saying "I will remove your
computer."
h. You allege that on June 7, 1996, you were insulted by [an agency
official] when he allegedly said to you "Mahesh, you cannot approve
[a co-worker's] leave slip because you are an administrative point of
contact."
The agency dismissed allegations (a) - (h) for failure to state a claim.
Specifically, the agency found that appellant failed to show how he was
harmed as a result of the matters raised in these allegations.
On appeal, appellant argues that he was rendered aggrieved by the matters
addressed in allegations (a) - (h) and that the agency perpetuates the
hostile environment addressed in his formal complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has 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 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 (April 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).
The agency dismissed allegations (a) - (h) for failure to state a claim.
In his formal complaint, appellant alleged that the matter
addressed in these allegations were part of a pattern of harassment which
created a hostile work environment. Instead of treating these events
as incidents of the claim of harassment, however, the agency looked at
them individually. Therefore, we find that the agency acted improperly by
treating matters raised in appellant's complaint in a piecemeal manner.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect"
of a complainant's allegations and define the issues in a piecemeal
manner where an analogous theme unites the matter complained of).
Consequently, when appellant's allegations are viewed in the context of
appellant's complaint of harassment, allegations (a) - (h) state a claim.
Accordingly, the agency's decision to dismiss allegations (a) - (h)
was improper and is REVERSED. Allegations (a) - (h) are REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See 29
C.F.R. �1614.402(a). Because the agency failed on appeal to supply
a copy of the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was filed
within thirty (30) calendar days of the date of appellant's receipt of
the final decision.
2 The record reflects that on February 25, 1997, appellant and the agency
entered into a settlement agreement solely in regard to this allegation.