01a03106
07-06-2000
Nell A. Arvites, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (FAA), Agency.
Nell A. Arvites v. Department of Transportation (FAA)
01A03106
July 6, 2000
Nell A. Arvites, )
Complainant, )
)
v. ) Appeal No. 01A03106
) Agency No. DOT-6-00-6022
Rodney E. Slater, )
Secretary, )
Department of Transportation (FAA), )
Agency. )
)
DECISION
On March 16, 2000, Nell A. Arvites (hereinafter referred to as
complainant) filed a timely appeal from the February 14, 2000, final
decision of the Department of Transportation (FAA) (hereinafter referred
to as 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 appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405). For
the reasons that follow, the agency's decision is REVERSED.
The issue presented in this appeal is whether the agency properly
dismissed complainant's complaint on the grounds that she failed to
state a claim and failed to raise issues during EEO counseling.
Complainant filed a formal complaint on December 6, 1999. The agency
dismissed her complaint, finding that she failed to state a claim, that
she failed to bring issues to the attention of an EEO counselor within
45 days of the events identified, and that she did not provide sufficient
excuse for extension of the time period nor state a continuing violation.
Complainant stated that her complaint alleges "hostile work environment
sexual harassment" by a male co-worker (E1). She claimed generally that
E1 criticized her work, yelled at her, and replicated her work activities,
about which the agency took no action. She identified several events
and contended, on appeal, that E1's actions against her were ongoing.
We find that the agency's piecemeal approach to the complaint acts to
fragment complainant's claims into separate parts, thus ignoring her
general claim of harassment. In our final rule issued July 12, 1999,
amending our regulations, we specifically expressed our concern about
the fragmentation of complaints, especially those alleging harassment
and a continuing violation. 64 Fed. Reg. 37,644, 37,648.<2>
The Commission identifies two types of harassment that could result in
liability: harassment that results in a tangible employment action
and harassment that creates a hostile work environment. Enforcement
Guidance: Vicarious Employer Liability for Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999). In her complaint, we find that complainant states a claim
of harassment based on a hostile working environment. In determining
whether a harassment complaint states a claim, in general, the Commission
considers whether the allegations, when considered together and assumed
to be true, are sufficient to state a claim that the complainant may
have been subjected to harassment that was sufficiently severe or
pervasive enough to alter the conditions of his or her employment.
Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4,
2000); Cobb v. Treasury, EEOC Request No. 05970077 (March 13, 1997).
Because the agency's decision fragments her complaint into 15 separate
issues, thus ignoring her overall claim of harassment (gender-based) or
whether she alleges a continuing violation, and is unclear as to which
allegations are dismissed (see Paragraph 4, page 4), we are remanding
the complaint to the agency to process her claim, without fragmentation
into numerous statements of supporting detail. Inasmuch as complainant
has alleged an ongoing pattern of harassment, the agency should accept
her claim of gender-based harassment and investigate all component parts
identified in its decision. The agency is also directed to meet with
complainant to frame her complaint in accordance with the decision herein.
Thereafter, her complaint should be processed and investigated according
to Commission regulations.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the agency is directed
to comply with the Order, below.
ORDER
The agency is ORDERED to acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the
date this decision becomes final and to meet with complainant within
ten (10) calendar days thereafter to properly frame her complaint in
accordance with the decision herein. Thereafter, the agency is directed
to process the remanded claims 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 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 (R0400)
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:
07-06-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ ______________________
Date
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.
2The Commission stated that "agencies are not properly distinguishing
between factual allegations in support of a legal claim and the legal
claim itself." Id.