0120073216-3218
09-10-2007
Narcisa G. Cunningham, Leonila B. Thomas, Rebecca L. Frey, Complainants, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Narcisa G. Cunningham, Leonila B. Thomas,
Rebecca L. Frey,
Complainants,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal Nos. 0120073216, 0120072317,
0120072318
Agency Nos. DECA000442007, DECA000452007,
DECA000432007
DECISION
Complainants filed timely appeals with this Commission from separate
final agency decisions, dated June 5, 2007, dismissing each of their
complaints alleging unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.1 Upon review, the Commission concludes
that the complaints were improperly dismissed, pursuant to 29 C.F.R. �
1614.107(a)(5), for mootness.
In their complaints, complainants alleged that they were subjected to
sexual harassment when, over the course of several months, they were
subjected to lewd remarks made by a co-worker, he stalked them and
stared at them, and made them uncomfortable. In addition, they stated
that when they complained to their supervisor, their supervisor told
them to "hide" or move out of the area when the co-worker came around.
Complainants assert that management did not act to keep the employee out
of their work areas after they complained. Instead, the alleged harasser
continued to come into their work areas or to the edges of their work
areas, and stare at them and further intimidate them. They alleged that
they were too scared to use the rest rooms or the break area because the
co-worker would hang around there as well. They further stated that they
had to be escorted to their cars.
The Commission notes as an initial matter, that the complaints proffered
by the three complainants state a claim. In determining whether a
harassment complaint states a claim in cases where a complainant had
not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has repeatedly examined
whether a complainant's harassment claims, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. See Estate of Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Even if harassing conduct produces no tangible effects, such as
psychological injury, a complainant may assert a Title VII cause of
action if the discriminatory conduct was so severe or pervasive that it
created a work environment abusive to employees because of their race,
gender, religion, or national origin. Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration
denied EEOC Request No. 05970995 (May 20, 1999). Also, the trier of
fact must consider all of the circumstances, including the following:
the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23.
In the instant case, the complainants have alleged incidents of
sufficient severity and pervasiveness to state a claim of sexual
harassment creating a hostile work environment. Moreover, they have
also alleged that management was aware of the harassment and failed to
take prompt and corrective action. As such, their complaints state a
viable claim of sexual harassment that requires further processing.
The agency dismissed the complaints as moot because the alleged harasser
left the agency. The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint when the issues raised therein
are moot. To determine whether the issues raised in complainant's
complaint are moot, the fact finder must ascertain whether: (1) it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
In this matter, because the complainants raised claims of compensatory
damages, we find the matter has not been rendered moot by the departure
of the alleged harasser. Accordingly, the agency's final decisions
dismissing complainants' complaints are reversed. The complaints are
hereby remanded to the agency for further processing in accordance with
this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded complaints in accordance
with 29 C.F.R. � 1614.108 et seq. The agency shall acknowledge to the
complainants that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainants a copy of the investigative files and also shall
notify complainants 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 any of the
complainants requests a final decision without a hearing, the agency
shall issue a final decision within sixty (60) days of receipt of that
complainant's request.
A copy of the agency's letter of acknowledgment to each complainant and
a copy of the notice that transmits the investigative files 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 (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
September 10, 2007
__________________
Date
1 Pursuant to 29 C.F.R. � 1614.606, the Commission consolidates the
three appeals into one decision because they relate to the same matter.
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0120073216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073216, 3217, 3218