01a01848
06-27-2000
Rodney Chavez, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Rodney Chavez v. Department of Health and Human Services
01A01848
June 27, 2000
Rodney Chavez, )
Complainant, )
)
v. ) Appeal No. 01A01848
) Agency No. IHS-080-99
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office regarding his claims of
discrimination and harassment due to a hostile work environment based on
sex, national origin, and age. Informal efforts to resolve his concerns
were unsuccessful. Accordingly, on August 28, 1999, complainant filed
a formal complaint claiming that:
On May 5, 1999, his Supervisor advised him to stop performing Level II
Obstetrics examinations, thereby denying him the necessary experience
needed to prepare him for the American Registry of Diagnostic Medical
Sonography;
On June 16, 1999, a Contract Radiologist implied that his work was
deficient when he told him his pictures were not in the right order
when he presented examination films;
On June 23, 1999, his Supervisor told him that the Contract Radiologist
complained that his work was sloppy, and that he did not like
complainant to speak when presenting examination films;
On June 25, 1999, he was called to his Supervisor's office and
advised that a co-worker accused him of leaving a dirty condom on the
trans-vaginal probe;
On June 29, 1999, he was called to his Supervisor's office and
reprimanded about re-scheduling patients;
On July 1, 1999, his Supervisor advised him that the Contract
Radiologist wanted him to take the written boards for Ob/Gyn ultrasound
certification;
On July 9, 1999, the Contract Radiologist refused to read two of his
examination films and referred him to another physician; and,
On August 11, 1999, the Contract Radiologist refused to read his
examination film, and referred it to another physician.
The agency issued a FAD dismissing the complaint for failure to state
a claim, finding that none of the above actions resulted in a harm to
a term or condition of employment. The agency additionally found that
complainant had not shown that the above actions were so severe or
pervasive as to constitute harassment.
On appeal, complainant argues that the agency erred when it did not
find that complainant had presented an actionable claim of harassment,
and that he was harmed in a "term or condition" of employment because he
was denied the opportunity to develop skills and experience to progress
in his career, and degraded by unwarranted criticism of his work.
He also argues that these actions disqualified him for an outstanding
performance evaluation. In response, the agency argues that its FAD
is correct, and that complainant submitted no evidence regarding his
performance evaluation claim.
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, 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).
In the present complaint, complainant claimed that from May 5, 1999,
to August 11, 1999, he was subjected to a pattern of discriminatory
harassment by his Supervisor and the Contract Radiologist. The alleged
harassment consisted of several actions which publically degraded
him by unwarranted discrediting of his work (incidents 1, 2, 3, 6,
and 7), and his Supervisor allegedly falsely accusing him of errors
and verbally reprimanding him for these errors with the sole purpose
of harassing him (incidents 4 and 5). We also find that complainant is
claiming that incident 8 is part of the pattern of harassment, when the
Contract Radiologist allegedly refused to read a film after he learned
of complainant's EEO activity, making a remark about "discriminating"
against complainant by his refusal.
Considering the identified actions in the light most favorable to
complainant, we find that complainant has stated a cognizable claim
under the EEOC Regulations. See Cervantes v. United States Postal
Service, EEOC Request No. 05930303 (November 12, 1993). Accordingly,
the agency's decision to dismiss the complaint on the grounds of failure
to state a claim is REVERSED. The claim is hereby REMANDED to the agency
for further processing in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED 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 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 (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:
June 27, 2000
Date Carlton M. 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.