0120101315
07-20-2010
Shirley Keys, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Shirley Keys,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120101315
Agency No. P20090584
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 9, 2010, dismissing her complaint of 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.
BACKGROUND
On April 28, 2009, Complainant contacted the EEO Office alleging
discrimination. When the matter was not resolved information,
Complainant filed a formal complaint. In her complaint, Complainant
alleged that the Agency subjected her to discrimination on the bases of
race (African-American) and color (Brown) when:
1. On April 1, 2009, Complainant became aware that the Agency did not
properly investigate her claim that a co-worker used the racial term
"Nigger" in the workplace.
2. On March 3, 2009, Complainant alleged that she was subjected to a
hostile work environment when her co-worker used the racial epithet,
"Nigger."
The Agency dismissed the complaint. As to claim (1), the Agency
determined that Complainant's claim was based on her dissatisfaction
with the Agency's internal investigation into her claim of harassment,
not the actual event. Therefore, the Agency found that the matter was
a collateral attack on the internal processing of the investigation.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. As to claim (2), the Agency indicated
that the alleged event occurred on March 3, 2009, while Complainant did
not contact the EEO Office until April 28, 2009, some 56 days after the
racial epithet was uttered. The Agency found that Complainant's contact
on April 28, 2009, was beyond the regulatory time frame. Therefore,
the Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2).
This appeal followed. Complainant asserted that her claim is severe
enough to state a claim of harassment. Further, she argued that her
contact was timely for her complaint was based on "the Agency's failure
to refer the matter for investigation promptly and failure to conduct a
proper, thorough, and impartial investigation concerning allegations that
a fellow co-worker used the term 'Nigger' in her presence." In failing
to investigate, Complainant argued that the lack of investigation by the
Agency in essence condones the use of the racial epithet in the workplace.
As such, Complainant requested that the Commission reverse the Agency's
decision dismissing the matter. The Agency asked the Commission to
affirm its final decision.
ANALYSIS AND FINDINGS
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. 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).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February
16, 1995). Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete action by an agency usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the Complainant's circumstances would have found the alleged
behavior to be hostile or abusive. 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. Dept. 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.
Here, we find that the Agency improperly treated the events as two
separate claims. Instead, the Agency should have treated Complainant's
complaint as a single claim of harassment. As Complainant stated on
appeal, she alleged that the Agency created a hostile work environment
when the co-worker uttered the racial epithet and the management condoned
the use of the word by failing to conduct a proper investigation.
The Commission has held that, under certain circumstances, a limited
number of highly offensive slurs or comments about a Federal employee's
race or national origin may in fact state a claim under Title VII. See
EEOC Compliance Manual, Section 15, "Race and Color Discrimination",
No. 915.003, 15-38 (April 19, 2006) (A single incident of a racial
comparison to an animal may create a hostile work environment); Brooks
v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996) (citation
omitted); Williams v. U. S. Postal Serv., EEOC Appeal No. 0120092247
(July 22, 2009) (The Commission found that Complainant's allegation that
he was referred to as "Monkey Boy" and as a "fucking nigger" stated a
claim of discrimination). Here, taking the events together as a whole
and the use of a historically offensive slur towards Complainant's race,
we find that Complainant's claim of harassment states a claim.
We note that the Agency dismissed event 2 pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. Upon review, however,
we determine that the Agency improperly dismissed event 2 on the grounds
of untimely EEO Counselor contact. The record reflects that Complainant
initiated EEO Counselor contact on April 28, 2009. The Commission finds
that "[b]ecause the incidents that make up a hostile work environment
claim collectively constitute one unlawful employment practice, the
entire claim is actionable, as long, as at least one incident is part
of the claim occurred within the filing period. This includes incidents
that occurred outside the filing period that the [Complainant] knew or
should have known were actionable at the time of their occurrence." EEOC
Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21,
2005) (citing National Railroad Passenger Corp v. Morgan, 536 U.S. 101,
117 (2002)). Here, Complainant contacted the EEO Counselor within 45
days of event 1. Therefore, Complainant's claim of harassment was
timely raised. As such, we conclude that the Agency's dismissal of
event 2 was improper.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision and REMAND the matter
to the Agency for further processing consistent with this decision and
the Order below.
ORDER (E0408)
The Agency is ordered to process the remanded claims 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 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0408)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 20, 2010
__________________
Date
2
0120101315
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101315