01981847
04-21-1999
Steven J. Fischer, Appellant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.
Steven J. Fischer v. Securities and Exchange Commission
01981847
April 21, 1999
Steven J. Fischer, )
Appellant, )
)
v. ) Appeal No. 01981847
) Agency No. SEC 25-97
Arthur Levitt, Jr., )
Chairman, )
Securities and Exchange )
Commission, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. Appellant's attorney received
the final agency on December 2, 1997. The appeal was postmarked December
31, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The first issue presented is whether the agency properly dismissed
allegations 1-3 of appellant's complaint on the grounds of failure to
state a claim.
The second issue presented is whether the agency properly dismissed
allegation 4 of appellant's complaint on the grounds that appellant
failed to raise the matter with an EEO Counselor and it is not like or
related to a matter that was raised during counseling.
BACKGROUND
Appellant initiated contact with an EEO Counselor on February 24, 1997.
On May 6, 1997, appellant filed a formal EEO complaint wherein he alleged
that he had been discriminated on the bases of his sex (male) and age
(DOB 2/28/48) when:
1. On February 10, 1997, the Assistant Regional Director (ARD), Office
of Enforcement of Region 3 (ARD), sent an E-mail to him stating "[i]t
is inappropriate to touch people in the office. Please make sure it
does not happen again."
2. In December 1996, the ARD stated "[y]ou will know a violation when
you see it; it is just like "pornography."
3. On January 24, 1997, the ARD stated "[j]ust like a man, never admits
they do not know something or are wrong."
4. The ARD of Region 2 said to him "[c]ut the crap. You were not at
your desk at 8 a.m. and signed in early."
5. His supervisor stated "[y]ou are slow picking up computer skills,
it must be age." Appellant also alleged that on other occasions his
supervisor has been verbally abusive toward him.
Appellant characterized the agency's treatment of him as harassment.
In its final decision, the agency dismissed allegations 1-3 of
appellant's complaint on the grounds of failure to state a claim.
The agency determined that three offensive comments to appellant based
on his sex are insufficient to state a claim of an abusive or offensive
work environment in violation of Title VII. The agency also dismissed
allegation 1 on the grounds that appellant's claim of defamation
is outside the jurisdiction of the EEO process. Allegation 4 was
dismissed on the grounds that appellant failed to bring this matter to
the attention of the EEO Counselor. With regard to allegation 5, the
agency stated that more information was needed in order to determine
whether this allegation should be accepted or dismissed. Therefore,
the agency requested further information from appellant.
On appeal, appellant states that the agency erroneously divided every
allegation into different bases and issues. Appellant contends that the
alleged incidents constitute harassment. Appellant notes that in several
instances, the alleged harasser was his supervisor. Appellant maintains
that there were more than three incidents of harassment and an abusive
work environment. According to appellant, the agency disregarded in
this context the incidents raised in allegation 5.
In response, the agency asserts that it properly dismissed appellant's
claim of defamation because that issue is not within the purview of the
EEO process. The agency argues that it properly dismissed the sexual
harassment claim because appellant did not allege that he was placed
in an objectively hostile environment. According to the agency, the
three comments set forth are isolated comments that are neither severe
nor pervasive. The agency maintains that it properly dismissed the sexual
discrimination claim because the alleged comments did not have an adverse
effect on the terms, conditions, or privileges of appellant's employment.
With regard to its dismissal of allegation 4, the agency asserts that
the alleged statement is not related to any of the other statements
of which appellant complains. The agency states that appellant's
other allegations concern a different management official. The agency
further states that the alleged comment does not relate to the other
bases raised by appellant except for the non-covered defamation claim.
Finally, the agency argues that the age discrimination claim can not be
reviewed at this juncture in light of the fact that the agency has not
issued a final decision on this issue.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 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 case, initially, we find that appellant's complaint
reflects a complaint of harassment. Appellant alleges that he was
subjected to harassment when the ARD sent him an e-mail stating it is
inappropriate to touch people in the office; the ARD stated that he will
know a violation when he sees it because it is just like pornography;
the ARD stated just like a man, never admits they do not know something
or are wrong; and the ARD of another region said to him "cut the crap,
you were not at your desk at 8 a.m. and signed in early." We note that
all of the identified incidents occurred over a short period of time,
i.e., approximately a three-month period. Viewing the identified
incidents set forth in the complaint in the light most favorable to
appellant, we find that appellant 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 allegations 1-3 of appellant's complaint for failure
to state a claim was improper. Allegations 1-3 are hereby REMANDED for
further processing in accordance with the ORDER below.
EEOC Regulation 29 C.F.R. �1614.107(b) provides in part that the agency
shall dismiss a complaint or a portion of a complaint that raises a
matter that has not been brought to the attention of an EEO Counselor
and is not like or related to a matter that has been brought to the
attention of an EEO Counselor.
The agency dismissed allegation 4 because appellant did not raise the
identified comment during the informal counseling process. As is the
case with several of the other alleged incidents, allegation 4 concerns
a critical comment directed toward appellant that appellant regarded
as harassment. Therefore, we find that the alleged comment concerning
appellant not signing in at the proper time is sufficiently related to
the matters that were raised with an EEO Counselor. Accordingly, the
agency's dismissal of allegation 4 was improper and is REVERSED.
Allegation 4 is hereby REMANDED for further processing in accordance
with the Order below.<1>
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (Allegations
1-4) in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge
to the appellant that it has received the remanded allegations
(Allegations 1-4) within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to appellant a copy of
the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
April 21, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Finally, we note that allegation (5) was not the subject of a final
decision and, therefore, it would be premature for any discussion of the
propriety of allegation (5) at this juncture.