01A02895_r
09-06-2001
Shirley Richardson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Shirley Richardson v. Department of the Treasury
01A02895
September 6, 2001
.
Shirley Richardson,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A02895
Agency No. 00-2016
DECISION
Complainant appeals from an agency decision dismissing her complaint.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed. In her October 5, 1999 complaint, complainant
claimed that she was discriminated against on the bases of her race
(African-American), color (dark), religion (Jehovah's Witness), sex
(female), and age (60; D.O.B. 7/19/39). The agency defined complainant's
complaint as stating that the claimed discrimination occurred when:
On September 18, 1998, complainant's manager referred to complainant
as �those kinds of people� and stated that complainant did not like
her because of her �blond hair and blue eyes�;
On November 24, 1998, complainant was advised by her manager that she
was going on a field call with complainant on November 30, 1998;
On December 8, 1998, complainant's manager did not want to accompany
complainant in her car for a field visitation; and
Management allowed an administrator to use the racial slur, �Sambo,�
for a new password in April 1999.
The agency dismissed claims 1, 2 and 3 for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency also found
that complainant raised claim 2 in a negotiated grievance procedure
that permits allegations of discrimination, and it should be dismissed
under 29 C.F.R. � 1614.107(a)(4) as well. The agency dismissed claim 4
pursuant to 29 C.F.R. � 1614.107(a)(1) because it failed to state a claim.
The agency, however, failed to consider several incidents of
discrimination raised in the complaint. In her complaint, complainant
listed four examples of the harassment from which she claimed to have
suffered. Complainant also referred to the September 6, 1999 memorandum
as an attachment to her complaint that contained other examples of the
claimed harassment. The agency discussed only the four discrete examples
in its decision. Therefore, the Commission, considering the complaint in
its entirety, defines complainant's discrimination complaint as alleging
the following incidents:
During December 1996 complainant's manager discussed, in a public
area, complainant's religious practice of not celebrating Christmas,
then renamed Collection Group 5200's (�group's�) �Christmas Party,� a
�Holiday Party,� where complainant was the only group member who did
not celebrate Christmas;
During August 1998 complainant requested information from her employee
binder and it was not promptly given to her;
On September 18, 1998, complainant's manager stated to complainant's
union steward, in reference to complainant, that she had �a hard time
talking to those kinds of people;�
On October 7, 1998, complainant's manager stated to complainant's union
steward that she did not think that complainant liked her and that it
may be because of her �blond hair and blue eyes;�
On November 24, 1998, complainant was advised by her manager that she
was going on a field call with her the day before Thanksgiving because
complainant did not celebrate the holidays; however, no other employees
were approached about scheduling field visits at that time;
On December 8, 1998, complainant's manager refused to ride in the car
with complainant to the scheduled field visits;
On March 25, 1999, complainant and all other members of her group were
sent the Trust Fund Penalty passwords, which were �SAMBO� and �GAY&&,�
by an acting manager of their group;
Complainant was frequently ignored by her manager who often refused to
speak to her and passed her in the hallways without recognition;
In the presence of other employees complainant's manager routinely told
her what she needed from her or what complainant had not done.
The agency dismissed what has been redefined as claim E.<1> We
find that this claim was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(4), on the grounds that complainant raised this issue in a
negotiated grievance procedure where the negotiated agreement permitted
the acceptance of grievances claiming discrimination.
The agency also found that with the exception of incident G,<2> where an
acting manager used the word �SAMBO� as a Trust Fund Penalty password,
complainant's contact with an EEO Counselor regarding her claims was
untimely. However, the agency improperly fragmented complainant's claims.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(Nov. 3, 1994) (agency should not ignore the �pattern aspect� of
complainant's claims and define the issues in a piecemeal manner where an
analogous theme unites the complained of matter). Instead of treating
the remaining incidents as one claim of harassment, the agency examined
them individually. Considering the claims together, the Commission
finds that complainant's contact with an EEO Counselor on April 23,
1999, was timely because the incident in (G) was timely raised.
The Commission finds that when all of the incidents of harassment (apart
from (E)) are considered in their totality, complainant has stated a
claim of harassment.
The agency's dismissal of claim E is AFFIRMED. The agency's decision
regarding the remaining incidents of harassment (incidents A - D and F -
I) is REVERSED and these incidents are REMANDED for further processing
in accordance with the Order below.
ORDER (E0900)
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 (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 (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
September 6, 2001
__________________
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
______________________________
1Claim E is agency claim 2.
2Claim G is agency claim 4.