01A04126
12-04-2000
Pauletta Hodges-Lewis, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Pauletta Hodges-Lewis v. U.S. Department of the Navy
01A04126
December 4, 2000
.
Pauletta Hodges-Lewis,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04126
Agency No. DON-00-00060-060
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 11, 2000, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. (Title VII), and the Equal
Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. (the EPA) <1>
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claims sex based wage discrimination under
the EPA in addition to discrimination under Title VII on the bases of
race, sex, and reprisal. Complainant additionally claims retaliatory
harassment and a hostile work environment with respect to her prior EEO
activity consisting of a prior complaint, opposition to the agency's
discriminatory promotion policies, and assisting a co-worker in pursuing
a claim under the EPA.
Complainant contends that although she encumbers a Program Analyst
GS-12 position, she performs many additional duties at the GS-13 level,
such that her position would more accurately be graded at a GS-13 level.
She contends that white males are routinely promoted non-competitively,
through an accretion of duties in such situations, but that blacks and
females must always compete for promotions. Complainant states that she
openly opposed this practice, and also filed two EEO complaints in her
own behalf. As a result of the agency's purported discriminatory policy,
and her EEO activities, complainant claims that she has been subjected
to a variety of adverse actions, sufficiently severe to create a hostile
work environment.
Complainant filed her first complaint regarding this situation, on January
31, 2000, (Agency No. DON-00-00060-049); and she then filed the second
and instant complaint on March 2, 2000.<2>
Complainant sets forth the following claims, in the following order,
in the instant complaint:
On January 9, 2000, the agency announced a Program Analyst GS-11
position which reflected her current GS-13 level duties, resulting in
a �constructive demotion� of her current position;
On January 9, 2000, the agency implemented a reorganization of
complainant's Branch, resulting in a downgrade (�constructive demotion�)
of her position as reflected on an organizational chart;
On January 9, 2000, the agency downgraded (�constructive demotion�)
her position by removing a subordinate from her supervision and placing
the subordinate under the supervision of a white male;
On January 11, 2000, in a meeting with two management officials,
complainant was told that she could not be promoted through an accretion
of duties due to agency personnel policy, but yet others outside of her
protected classes had received such promotions;
On February 8, 2000, complainant was summoned to her supervisor's office,
where she was confronted by the supervisor and a management official, who
threatened her and tried to coerce her into accepting an �award� check for
performance of additional duties, in lieu of a non-competitive promotion,
and also as an inducement for her to desist in her EEO complaints and
other oppositional activities; and,
During the course of the EEO counseling on the instant complaint, her
claims were repeatedly fragmented and mis-characterized, despite multiple
and on-going clarifications from complainant, with the aim of defeating
her complaint, thus constituting interference with the EEO process.
Complainant additionally claims that the above actions resulted in a loss
of professional status among her co-workers, and that agency management
maligned her because of her EEO activities, causing her to be shunned
and alienated. Taken altogether, complainant argues that these actions
constitute harassment and created a hostile work environment.
The agency dismissed claim 5 on the grounds of failure to state a claim
finding that complainant was not aggrieved by being offered an award
check, nor by the comments made by the management officials during the
course of the February 8, 2000 meeting. The agency dismissed claims 1
through 4 on the grounds that they stated the same claims as set forth in
complainant's first complaint (Agency No. DON-00-00060-049). The agency
then dismissed claim 6 finding that it was a spin-off complaint.
On appeal, complainant argues that the agency fragmented her claims
and improperly dismissed the complaint. Complainant states that if
her complaint could be put into two words, they would be �retaliatory
harassment.� Complainant also argues that the agency's decision is
tainted by a conflict of interest because the same agency official
who dismissed the instant complaint was a named responsible management
official in her prior complaint. In response, the agency sets forth
additional justification for its dismissals, addressing the merits of
the claims, and requests that we affirm its decision.
The regulation set forth at 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).
Regarding claim 5, we find that complainant has stated an actionable
claim under both the EPA and Title VII. Complainant claims that males
in positions similar to hers, performing essentially the same duties as
she, are compensated at a higher grade level. We find that this states
a claim under the EPA. See 29 C.F.R. �206(d). Complainant additionally
contends that she is being denied a non-competitive promotion due to race,
sex, and reprisal. We find that this renders complainant aggrieved, and
therefore states a claim under Title VII. Moreover, to the extent that
the two identified agency officials threatened complainant with adverse
action if she refused the award check and refused to desist engaging in
the EEO process, we find that this states a claim of interference with
the EEO process because it could have a chilling effect on complainant's
use of the EEO process. See George v. U.S. Postal Service, EEOC Request
No. 05980451 (October 8, 1998); Torrez v. Social Security Administration,
EEOC 05950947(March 10, 1998). Accordingly, we REVERSE the agency's
dismissal of claim 5, and REMAND it for further processing, as set forth
in the ORDER below.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Regarding claims 1 through 4, we find that the agency has presented
insufficient evidence to show that these are the same claims raised
in the previous complaint. The previous complaint is not in evidence,
and although the agency issued a memorandum permitting complainant to
amend the previous complaint, it is not clear which claims are involved,
or that the amendment was actually processed. The Commission has long
held that the agency has the burden of providing evidence to support its
final decisions. See Ericson v. Department of the Army, EEOC Request
No. 05920623 (January 14, 1993). According, we REVERSE the agency's
dismissal of claims 1 through 4, and REMAND them for further processing,
consistent with the ORDER below.<3>
EEOC Regulation 29 C.F.R. � 1614.107(a)(8), requires that a complaint
that alleges dissatisfaction with the processing of a previously filed
complaint be dismissed. See also Equal Employment Opportunity Management
Directive 110 (EEO-MD-110), at 5-14 (as revised, November 9, 1999).
In claim 6, complainant contends that during EEO counseling her claims
were repeatedly fragmented and mis-characterized. We find that claim
6 involves dissatisfaction with the EEO counseling stage, which is a
processing concern and is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(8).
Finally, we find that the agency's decision failed to consider
complainant's harassment claim. In the instant complaint, complainant
claims that her request for a non-competitive promotion, based on an
accretion of duties, was met with threats and, in essence, an attempted
bribe with an �award� check. This came after the agency's very limited
�reorganization� in which complainant's position was graded at a GS-13,
(referred to by the agency as an �advisory classification�), but the
position was not reclassified as such. Instead, complainant's accredited
duties where removed from her position, and a new position was created
and advertised for competitive promotion. As a result, complainant's
position was, in effect, downgraded in terms of supervisory responsibility
and professional status, as evidenced by organizational charts before
and after the reorganization. Complainant additionally contends that
management spoke negatively about her EEO activity to co-workers, and
that she was shunned and alienated as a result.
In Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the Supreme
Court found that harassment is actionable, even absent a claim that
an agency's action harmed complainant in a specific term, condition
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as 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 this case, complainant claims she was required to perform additional
duties for which she was not compensated, subjected to threats when she
requested a promotion as compensation, denied a promotion, downgraded
in terms of duties, supervisory responsibility, and professional
status, and shunned and alienated in the workplace. We find that
complainant has clearly stated a claim of harassment due to a hostile
work environment under the legal standard set forth above. Moreover, to
avoid fragmenting the claims in the present complaint the agency should
consolidate this matter with complainant's previous complaint (Agency
No. DON-00-00060-049), if possible, in accordance with the regulations.
See 29 C.F.R. � 1614.606.
CONCLUSION
In conclusion, we find that the agency improperly dismissed claims 1-5,
and properly dismissed claim 6. Claims 1-5 are hereby REMANDED for
further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, determine whether the present complaint may be consolidated
with the prior complaint, Agency No. DON-00-00060-049, in accordance
with 29 C.F.R. � 1614.606, and notify complainant of the consolidation
determination;
2) Process the remanded claims, as identified herein, in accordance with
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 consolidation determination, the 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2According to the record, the agency issued a memorandum to complainant,
dated February 7, 2000, apparently addressing her request to amend her
prior pending complaint (Agency No. DON-00-00060-049), with some or all
of the claims comprising the instant complaint. The memorandum advised
complainant that she could do so. However, review of the records fails
to indicate that this amendment was implemented.
3Taken together, we find that in claims 1 through 4, complainant is
claiming discrimination regarding two separate actions: the agency's
failure to promote her through an accretion of duties, as well as
the subsequent and separate �constructive demotion.� We find that
complainant is further claiming retaliatory harassment regarding these
both these actions, coupled with the resulting loss in professional
stature which accompanied each.