01986197
08-26-1999
Syddia Lee-Chee, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Syddia Lee-Chee v. Department of Transportation
01986197
August 26, 1999
Syddia Lee-Chee, )
Appellant, )
)
v. ) Appeal No. 01986197
) Agency No. 2-98-2035
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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. The final agency decision was issued on July
10, 1998. The appeal was submitted by fax transmission on August 13,
1998. 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.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant, a Marketing Representative/Outreach Coordinator, GS-11, with
the Department of the Treasury, initiated contact with an EEO Counselor
on August 13, 1997. On December 2, 1997, appellant filed a formal EEO
complaint wherein she alleged that she had been discriminated against on
the basis of her sex (female) when at the League of United Latin American
Citizens (LULAC) convention, she was sexually harassed by an employee
of the respondent agency. According to appellant, on June 26, 1997,
the employee of the respondent agency made unwelcome advances toward
her by calling her late at night, demanding to see her, and coming by
her hotel room late at night. Appellant stated that the employee of the
respondent agency commented on her physical appearance, stated that he
wanted to be with her, kissed her, touched her breast, failed to leave
her hotel room when she told him to do so, removed his pants, and jumped
onto her bed after she told him to leave. Appellant further stated that
the employee of the respondent agency touched her face and told her that
he was always thinking of her. Appellant alleged that on June 27, 1997,
the employee of the respondent agency made unwelcome sexual advances
towards her by calling her room around midnight and telling her that
he wanted to see her. According to appellant, on June 28, 1998, the
employee of the respondent agency made unwelcome sexual advances towards
her by touching her knee in front of many professional colleagues.
In its final decision, the agency dismissed appellant's complaint on the
grounds of failure to state a claim. The agency determined that since
appellant is a Department of Treasury employee, there is no supervisory
relationship between the agency and herself. The agency reasoned that
although appellant may have been offended by the agency employee's
behavior at a non-government convention, it did not affect the terms
and conditions of her employment.
On appeal, appellant states that she was sent to the LULAC convention
by her agency for marketing activities and outreach. Appellant states
that her agency paid for her hotel and airfare. Appellant argues that
the alleged perpetrator of the sexual harassment also attended the
convention on behalf of his agency. According to appellant, the alleged
perpetrator was an agent of the respondent agency when he moderated a
program on welfare reform at the convention, an area he worked on in his
employment with the agency through his assignment to the President's
Initiative on Welfare to Work. Appellant argues that although she is
not employed by the respondent agency, she may bring an action against
the respondent agency in connection with its administration of terms,
conditions, benefits, or privileges of employment.
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 the instant case, appellant alleged that she was sexual harassed by
an agent of the respondent agency during her attendance at the LULAC
convention. The ability to be free of sexual harassment is a condition
of appellant's employment with her employing agency. Consequently, we
conclude that the alleged sexual harassment against her by an employee of
the respondent agency resulted in harm to this condition. Additionally,
the Commission has held that an employee or applicant of a federal agency
who is negatively affected by an action taken by another agency which
affects a term, condition, or privilege of that person's employment,
may file a complaint of discrimination against the acting agency.
Buchhagen v. Department of Health and Human Services, EEOC Request
No. 05940948 (June 3, 1996). However, we are unable to conclude at this
point whether the named agency is the proper respondent since it is not
clear based on the present record whether the alleged perpetrator of the
sexual harassment was an agent of the agency at the LULAC convention.
If the alleged perpetrator was not working for the agency at the time
he attended the LULAC convention, then the agency would not be properly
named. Therefore, the record needs to be supplemented with information
that will address this issue. Accordingly, the agency's dismissal of
appellant's complaint for failure to state a claim is VACATED. This case
must be REMANDED to the agency for further processing in accordance with
the Order below.
ORDER
The agency is ORDERED to take the following actions:
Conduct a supplemental investigation in which it shall determine whether
the alleged perpetrator of sexual harassment in the instant complaint was
an agent of the agency at the League of United Latin American Citizens
convention from June 23 - 28, 1997. In making this determination, the
agency shall consider whether the employee at issue was on government time
and paid as such by the agency during his attendance of the convention.
Other factors to be considered by the agency are whether the hotel costs
and airfare of the employee at issue to attend the LULAC convention
were paid by the agency. Within thirty (30) calendar days of the date
this decision becomes final, the agency shall complete this supplemental
investigation.
Thereafter, the agency shall issue either a notice of processing or
final agency decision with appropriate appeal rights.
A copy of the notice of processing or final agency decision 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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant appeal
was timely filed.