Susan L.Y. Sugita, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 22, 2007
0120070179 (E.E.O.C. Feb. 22, 2007)

0120070179

02-22-2007

Susan L.Y. Sugita, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Susan L.Y. Sugita,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120070179

Agency No. 06-62478-001

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 7, 2006, 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.

Upon review, the Commission finds that complainant's complaint was

improperly dismissed.

During the relevant period, complainant was employed as a Supervisory

General Engineer at a Hawaii facility of the agency. Complainant

initiated contact with an EEO Counselor alleging that the agency

discriminated against her based on sex (female) when she was subjected

to hostile work environment harassment by coworkers and management

allowed it. Complainant provided a separate statement alleging that

two male coworkers spied on her, told lies about her, and started

disagreements with her; and she expressed concerns to her Commander

(S1) and management to no avail. She added that S1 and other management

suggested that she was the problem. Subsequently, complainant filed a

formal EEO complaint alleging that the agency subjected her to hostile

work environment harassment based on sex when S1 (1) removed her service

desk function and falsely stated that there was a mandate that the

function be combined with the work induction board,1 (2) demeaned her

for discussing the sexual harassment issues of one of her subordinate

employees with a third party she deemed appropriate, (3) allowed males to

disrespect and harass her without consequence, (4) denied privileges to

her staff members that were allowed to the staff members of her peers,

(5) denied her access to important information, such as FEC transition,

that was shared with her male coworkers, (6) denied her request for

additional duties although two duties were removed from her position,

(7) removed her from her private office and tried to relocate her to a

cubicle, (8) counseled her for a disagreement with a peer but did not

counsel the peer, and (9) failed to restore 92.5 hours of sick leave to

her that she used due to work-related stress.

In its September 2006 final decision, the agency dismissed incident

(1) pursuant to 29 C.F.R. � 1614.107(a)(1) for stating a claim that has

been decided by the agency; incidents (2), (4) - (6), and (8) for raising

matters that have not been brought to the attention of a Counselor and are

not like or related to a matter that has been counseled; and incidents

(7), (8), and (9) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. In addition, the agency dismissed complainant's

allegations regarding her two male coworkers for failure to state a

claim.

In the instant case, complainant alleged a claim of hostile work

environment harassment by S1 and alleged incidents (1) through (9) to

support her claim. We note that she discussed action or lack thereof by

S1 in her pre-complaint also. Thus, as an initial matter, we address

whether complainant's claim of harassment states a claim and we find

that it does.

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. 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. Dep't of the Air Force, EEOC Request No. 05931049

(April 21, 1994). In addition , the Commission has held further that

where a complaint does not challenge an agency action or inaction

regarding a specific term, condition, or privilege of employment, the

claim may survive as evidence of harassment if it is sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the

harassment is sufficiently severe to trigger a violation of EEO statutes

must be determined by looking at all of the circumstances, including

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.

See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

Considering the incidents alleged in (1) through (9) in the light most

favorable to the complainant, we determine that they are sufficient to

state a claim of hostile work environment harassment. Cobb v. Dep't of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). Due to the fact

that incident (1) has been decided by the agency, it may be considered

solely as background evidence for the instant claim of harassment.

Further, although complainant alleged actions by her coworkers to

support her claim of harassment in her pre-complaint, she did not do so

in her formal complaint and those should not be considered as part of

the instant claim of harassment. After careful review of the record, we

REVERSE the agency's final decision dismissing complainant's complaint.

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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 22, 2007

__________________

Date

1 We note that the EEO Counselor's Report indicates that, on February 10,

2005, complainant claimed the same in a breach of settlement agreement

allegation and it was addressed by the agency in writing on March 4,

2005.

??

??

??

??

2

0120064086

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120070179