0120110955
02-28-2011
Timothy M. Copes, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Timothy M. Copes,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120103169
0120110955
Agency Nos. ARMEADE10MAY02270
ARMEADE10JUL01388
DECISION
Complainant filed timely appeals with this Commission from the Agency's
decisions dismissing his complaints 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. For the following reasons, the
Commission REVERSES the Agency's decisions.
ISSUES PRESENTED
The issues presented on appeal are whether the Agency properly dismissed
Complainant's two EEO complaints for failure to state a claim, and for
untimely EEO Counselor contact.
BACKGROUND
At the time of the events giving rise to these complaints, Complainant
was the Installation Food Program Manager (Food Service Specialist),
GS-1667-09, at the Army's Fort Meade, in Maryland. He began his
employment there in February 2009, after retiring from the U.S. Army.
He came to believe that the duties of his position were greater than
the pay grade associated with it, and discovered that the same position
with the same or similar duties at Forts Meyer, McNair, and Belvoir
(all within the same geographical area as Fort Meade) were graded at
the GS-11 level. In April 2010, he submitted a written proposal to his
supervisor, which put forth his argument that his grade level should
be increased, and which compared and contrasted his position to those
GS-11 positions at the other installations.
In his first EEO complaint, Agency Number ARMEADE10MAY02270 (Complaint
#1), filed on June 22, 2010, Complainant alleged that the Agency subjected
him to discrimination and a hostile work environment on the bases of sex
(male) and in reprisal for prior protected EEO activity arising under
Title VII when:
1. between February 2010 and May 14, 2010, his supervisor, S1, stated
that she was not going to reclassify his duty position from Food Service
Specialist, GS-1667-09, to Food Service Supervisor Specialist, GS-1667-11,
and S1 informed Complainant that if he wanted to get promoted then he
should leave; she also made comments that if he did not like working
there, he should leave, he was not going to get promoted to GS-11 due
to lack of funding, and if he wanted to get promoted he should change
his GS series;
2. on May 14, 2010, S1 shoved ICE1 Comment Cards at him;
3. during a Food Management Assistance Team out-brief, Complainant was
being praised for a job well done and S1 started talking over the Team
Leader (Mr. B) to move forward with the meeting;
4. Complainant was required to do research on how things should be done;
5. Complainant applied for another position and S1 responded "what are
you telling me for";
6. S1 questioned Complainant about an ICE Comment from a USAR Unit; and
7. on April 19, 2010, during a meeting with S1, S1made comments about
Complainant's body language and communication.
In his second EEO complaint, Agency Number ARMEADE10JUL01388 (Complaint
#2), filed on October 6, 2010, Complainant alleged that the Agency
subjected him to discrimination on the basis of reprisal for prior
protected EEO activity arising under Title VII when:
8. on June 18, 2010, S1 called him into her office and stated that since
she has been back from leave, Complainant had not given her any comment
cards and stated, "I now want a comment card every day from this day
forward";
9. on June 20, 2010, after receiving menus for 16 months, S1 stated she
could not read the menus and demanded that he provide a more readable
menu. After Complainant provided her a different version of the menu,
S1 answered that the days did not match the month; and she still could
not read it. She wanted the menu to be reformatted to reflect the current
dates and for it to be given to her every week;
10. on July 8, 2010, S1 asked Complainant to come into her office to
review an Independent Government Estimation (IGE), and when Complainant
asked Mr. S to attend, S1 stated, "I don't want to see Mr. S, I just
need to see [Complainant]";
11. on July 19, 2010, S1 issued Complainant a written Informal Discipline,
which Complainant believed was unmerited;
12. around August 2010, S1 spoke to Ms. S and Mr. J and allegedly told
them not to speak to or associate themselves with Complainant because
he was considered to be "bad news";
13. on September 2, 2010, without acknowledging herself, S1 violated
Complainant's privacy by standing less then one foot behind him and
reading an open document on his computer. S1 then accused him of doing
a task she had assigned to a coworker, Ms. S;
14. on September 16, 2010, S1 violated his privacy by asking him personal
questions pertaining to his health; S1 made a statement to him that he
should be cautious about submitting unscheduled leave requests; and
15. on September 20, 2010, S1 issued him an Informal Performance
Counseling.
In a final decision dated June 30, 2010 (FAD #1), the Agency dismissed
Complaint #1, claims 1 through 7, for failure to state a claim,
in accordance with 29 C.F.R. � 1614.107(a)(1). The FAD found that
Complainant's claims were not, taken as a whole, severe or pervasive
enough to state a claim of harassment. Additionally, it found that
Complainant was not aggrieved, and that he had not shown any prior EEO
activity such that he could claim discrimination based on reprisal.
Accordingly, the Agency dismissed Complaint #1. Complainant timely
filed his appeal (EEOC Appeal Number 0120103196) on July 29, 2010.
In a final decision dated October 20, 2010 (FAD #2), the Agency dismissed
claims 8, 9 and 10 for failure to contact an EEO Counselor within 45 days
of the alleged discriminatory events. The events in claims 8, 9, and 10
occurred on June 19, 2010, June 20, 2010, and July 8, 2010, respectively,
but Complainant did not contact an EEO Counselor until August 23, 2010,
which was the 46th day after claim 10. The Agency dismissed claims
11 through 15 for failure to state a claim, in accordance with 29
C.F.R. � 1614.107(a)(1). FAD #2 again found that Complainant's claims
were not, taken as a whole, severe or pervasive enough to state a claim
of harassment. It again found that Complainant was not aggrieved in
that he had not suffered a personal loss or harm to a term, privilege,
or condition of his employment. Complainant timely filed his appeal
(EEOC Appeal Number 0120110955) on December 4, 2010.
CONTENTIONS ON APPEAL
In his appeal of FAD #1, Complainant argued that he had been called as
a witness in the complaint of another employee against S1, that that
complaint involved allegations of racial discrimination, and therefore,
he had the requisite protected EEO activity such that he could claim
reprisal as a basis in his complaint. He argued that he, and other men
at the workplace, were subjected to a "constant flood of degrading,
hostile and humiliating comments" and that he had adequately claimed
that he was subjected to a hostile work environment based on his sex
such that the Complaint #1 should be remanded for an investigation.
In response to Complainant's argument in EEOC Appeal Number 0120103169,
the Agency argued that Complainant had "merely alleged isolated incidents
that were not severe or pervasive enough to state a claim" and were
appropriately dismissed. It argued that the protected activity in which
Complainant claimed he participated did not actually involve EEO claims.
It also stated that Complainant should have requested a desk audit,
with respect to claim 1, and in the absence of a desk audit request,
he failed to state a claim.
In his appeal to FAD #2, Complainant argued that the behavior of S1
towards him had become severe or pervasive enough to create a hostile work
environment, and had had an adverse impact on his working conditions.
He also argued that claims 8, 9, and 10 were not time-barred as they
were part of his claim of a hostile working environment, and timely
incidents had been advanced as part of the claim of harassment.
In its response to Complainant's argument in EEOC Appeal Number
0120110955, the Agency argued that its decision to dismiss Complainant's
complaint was correct and should be affirmed.
ANALYSIS AND FINDINGS
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
(Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. 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 a 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.
Further, the Commission has long held that 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. Dep't
of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
We find that Complainant's complaints, taken as a whole, adequately
state a claim of a hostile working environment harassment. Complainant
alleges that he was subjected to harassment by his supervisor based on
his sex and in reprisal for protected EEO activity when S1 declined to
reclassify his position, issued him an Informal Written Disciple, issued
him an Informal Performance Counseling, and subjected him to comments and
behavior he found to be "degrading, hostile and humiliating." The alleged
harassment occurred on several occasions. Further, considering that the
identified actions were all perpetrated Complainant's supervisor, and
viewing the identified remarks and comments in the light most favorable
to Complainant, we find that Complainant has stated a cognizable claim
under the EEOC Regulations. See Cervantes v. U.S. Postal Service, EEOC
Request No. 05930303 (Nov. 12, 1993).
We find that the Agency was also incorrect in "dismissing" Complainant's
basis of reprisal at this stage in the processing of his complaint.
Complainant has adequately alleged that he engaged in protected
EEO activity. The Agency's claims to the contrary go to the merits
of Complainant's case, and are irrelevant to the procedural issue of
whether he has stated a justiciable claim under Title VII. See Ferrazzoli
v. U.S. Postal Service, EEOC Request No. 05910642 (Aug. 15, 1991).
Regarding timeliness, EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides,
in pertinent part, that the agency shall dismiss a complaint or a portion
of a complaint that fails to comply with the applicable time limits
contained in 29 C.F.R. � 1614.105, unless the agency extends the time
limits in accordance with 29 C.F.R. � 1614.604(c). EEOC Regulation 29
C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory. A complainant alleging a
hostile work environment will not be time barred if all acts constituting
the claim are part of the same unlawful practice and at least one act
falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002).
We find that claims 8, 9, and 10 should not have been dismissed for
untimely EEO Counselor contact. Complainant is claiming that he was
subjected to a hostile work environment, and claims 11 through 15 were
timely raised with the EEO Counselor. Therefore, claims 8, 9, and 10 are
not time-barred, as they are alleged to be a part of the same unlawful
practice of harassment, and fall between the acts claimed in Complaint
#1 and the timely acts of Complaint #2.
Accordingly, the agency's decisions dismissing Complainant's complaints
are hereby REVERSED. The complaints, as defined in this decision,
are REMANDED for further processing in accordance with the Order below.
ORDER (E0610)
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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 28, 2011
Date
1 The definition of this acronym is not readily apparent.
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2
0120103169
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103169
& 0120110955