01992683_01a01396
07-06-2000
Monica Rudd, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Monica Rudd, )
Complainant, )
) Appeal Nos. 01992683
v. ) 01A01396
) 01A01397
Lawrence H. Summers, ) Agency Nos. 994062
Secretary, ) 994076
Department of the Treasury, ) 994077
Agency. )
____________________________________)
DECISION
Complainant filed three timely appeals with this Commission from agency
decisions dated January 15 and 22, 1999.<1> Through its discretion,
the Commission has consolidated these three cases. 64 Fed. Reg. 37,644,
37, 661 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.606).
On January 15, 1999, the agency issued Decision 1 (EEOC Appeal
No. 01992683) which dismissed the complaint pursuant to 64 Fed. Reg. 37,
644, 37, 656 (1999) (to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)) for failure to state a claim and for raising the same
claims in an earlier EEO complaint. In her December 8, 1998 complaint,
complainant alleged that the agency discriminated against her on the
bases of race (Black), color (Black), religion (Christian), sex (female),
and in reprisal for prior EEO activity when:
on November 2, 1998, a co-worker yelled at complainant and called
complainant names, and the manager took the co-worker's side;
on November 4, 1998, EEO counselor (A) told complainant to go to the
union because the complainant did not have an EEO complaint;
on November 15, 1998, a co-worker picked on complainant and made the
complainant count 300 cards;
on November 24, 1998, the EEO specialist failed to notify an EEO
counselor that the complainant needed EEO counseling for another
complaint;
on November 24, 1998, an agency inspector yelled at the complainant;
on December 2, 1998, complainant's manager refused to give complainant
an additional week of on the job training;
on December 2, 1998, a co-worker and a Union steward told complainant
that someone had a problem with the complainant praying for them;
on November 24, 1998, the complainant received notices that she owed
the government money for overpaid benefits and missed loan payments;
during an unspecified time period, the complainant's loan paperwork
could not be located; and
since February 1998, the union collected dues from complainant's pay
check.
The agency found that the complainant had not shown that she was harmed
or adversely affected by claims 1 through 7. Also, the agency found
that claim 8 stemmed from a prior EEO complaint (regarding a suspension)
and dismissed claim 8 for stating the same claim as a prior matter.
In addition, the agency found that claims 9 and 10 fail to state a claim
against the agency because they involved the processing of complainant's
loan paperwork by the Department of Education and the collection of union
dues by the union. Consequently, the agency found that complainant was
challenging actions which were not taken by the agency.
On January 22, 1999, the agency issued Decision 2 and Decision 3 (EEOC
Appeal Nos. 01A01396 and 01A01397) which dismissed two complaints for
failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In her complaint of December 27, 1998, complainant alleged that the
agency discriminated against her on the bases of race (Black), sex
(female), and in reprisal for prior EEO activity when:
on December 10, 1998, EEO counselor B assigned to her case told her
that she accidentally shred the �authorization to reveal identity of
complainant during informal counseling� and requested complainant to
provide a duplicate;
on December 14, 1998, she observed several agency employees completing
a police report; and
on December 27, 1998, her request to meet with a senior agency official
was not addressed.
In another complaint dated December 27, 1998, complainant alleged that
the agency discriminated against her on the bases of race (Black), sex
(female), religion (Christian), and in reprisal for prior EEO activity
when:
on December 18, 1998, complainant's manager instructed her to remove
an angel pin from the lapel of her U.S. Customs Service uniform;
on December 23, 1998, a co-worker told complainant that her manager
was questioning one hour of overtime on complainant's time record; and
on December 24, 1998, a co-worker yelled at complainant and stated that
she was in trouble when she returned from lunch.
The agency found that complainant had not shown that she was harmed or
adversely affected with regard to the matters raised in her complaints
of December 27, 1998.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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, .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 the harassment to which the
complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of the complainant's employment.
The Commission has repeatedly found that a remark or comment unaccompanied
by concrete agency action is not usually a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. U.S. Postal Service, EEOC Request No. 05940625 (February
9, 1995). However, 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 her complaints, complainant alleged a series of events which allegedly
occurred from November through December 1998. Specifically, she
alleged that she was subjected to harassment which created a hostile
work environment. Instead of treating these events as incidents of
harassment, the agency looked at them individually. Thus, we find that
the agency acted improperly by treating matters raised in the complaints
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 claims and define the
issues in a piecemeal manner where an analogous theme unites the matter
complained of). Consequently, when the claims are viewed in the context
of harassment, they state a claim, and the agency's dismissal of those
claims was improper. As defined herein, a complaint of harassment is
set forth in claims 1, 3, 5, 6, 7, 8, 13, 14, 15, and 16.
EEOC Regulation 29 C.F.R. �1614.107(a)(1), in relevant part, also
provides for the dismissal of a claim that states the same claim that
is pending before or has been decided by the agency. Regarding claim
8,we find that this matter is not identical to that raised in the
prior EEO complaint. According to the record, complainant raised the
issue of her 30-day suspension in a prior October 20, 1998 EEO complaint
(Agency No. 99-4018M); however, she did not raise the issues of overpaid
benefits or missed loan payments. Consequently, we find that the issue
of whether complainant was subjected to discrimination when she was
informed that she owed monies for overpaid benefits and missed loan
payments is a distinct analysis from that resulting from the issue of
whether she was discriminatorily issued a 30-day suspension. Therefore,
we find that the agency's dismissal of claim 8 was improper.
With regards to claims 2, 4, and 11, we find that these incidents
involve complainant's dissatisfaction with the EEO processing of her
complaint. Volume 64 Fed. Reg. 37, 644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. �1614.107(a)(8)) provides that
the agency shall dismiss a claim that alleges dissatisfaction with the
processing of a previously filed complaint. Accordingly, claims 2, 4,
and 11 were properly dismissed.
With regard to claims 9 and 10, we find that complainant failed
to identify any action by the named agency. The agency is not the
responsible party involved and did not adversely affect or otherwise
discriminate against complainant. It appears that the loan paperwork
was misplaced by the entity handling the loan application, i.e., the
Department of Education, and the dues were being collected by the union.
Consequently, we affirm the agency's dismissal of claims 9 and 10.
Finally, the Commission finds that claim 12 fails to state a claim.
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). Complainant did not suffer a harm or
loss because of the actions of the agency employees. Complainant has
not shown that she was the subject of the police report or that the
agency took any adverse action against her based on a police report
filed by agency employees. As a result, this claim must be dismissed.
The agency's dismissal of claim 12 is AFFIRMED.
Finally we note that complainant has a remaining EEO complaint, Agency
No. 994018, in which she alleges harassment. Whenever a complainant
files two or more complaints with substantially similar allegations
of discrimination or relating to the same matter, the agency should
consolidate the complaints for joint processing. See 29 C.F.R. �1614.606.
The Commission strongly recommends that the agency process these remanded
claims (from Agency Nos. 994062, 994076, and 994077) in conjunction with
the processing of Agency No. 994018.
Accordingly, the agency's dismissal of claims 1, 3, 5, 6, 7, 8, 13, 14,
15, and 16 is REVERSED and REMANDED. The agency's dismissal of claims 2,
4, 9, 10, 11, and 12 is AFFIRMED.
ORDER
The agency is ORDERED to process the remanded claims (1, 3, 5, 6,
7, 8, 13, 14, 15, and 16) in accordance with 64 Fed. Reg. 37,644,
37,656-7 (1999) (to be codified and hereinafter referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.