Steven J. Fischer, Appellant,v.Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.

Equal Employment Opportunity CommissionApr 21, 1999
01981847 (E.E.O.C. Apr. 21, 1999)

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.