0120091861
08-27-2009
Tommie Savage, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Tommie Savage,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091861
Agency No. ARCEHECSA08AUG04607
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 9, 2009, 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. In her
complaint, complainant alleged that she was subjected to discrimination
and harassment on the bases of race (African-American), sex (female),
and reprisal for prior protected EEO activity. In support of her claim
of harassment, complainant alleged that the following events occurred:
a. On July 28, 2008, complainant alleged that a fellow employee (E1)
sent complainant an "attacking" email along with her supervisor, several
employees, and government contractors. The email accused complainant of
causing stress and additional work for the Contracting office because
she returned documents due to errors.
b. On or about July 23, 2008, complainant alleged that she discussed
her concerns with her supervisor (S1) about the demand the Contracting
office placed on her.
c. On or about July 21, 2008, complainant alleged that during a
meeting, she wanted to clarify a comment; however, another Supervisor
(S2) stopped her but he allowed another employee to express her opinions.
d. On or about July 21, 2008, complainant alleged that she learned
that the former acting Director of Contracting, issued guidance for
the Small Business office to the workforce. Complainant informed her
supervisor that the small business guidance was distributed without her
being copied on the email.
e. On or about July 2, 2008, complainant alleged that she was left to
defend herself because no intervention was made on her behalf or support
from her chain of command regarding an email received from the Project
Manager. The Project Manager took exception to complainant forwarding
him information on Small Businesses and included other individuals on
the email.
f On or about June 26, 2008, complainant alleged the Directorate
of Contract personnel held a meeting on June 6, 2008, regarding the DD
2579 process on task orders with the Commander, without Small Business
representation. Complainant further alleged that the Commander decided
that her office (SM) would no longer complete the DD 2579 process on
task orders after being advised by the acting Director of Contracting.
g. On May 12, 2008, complainant alleged that a new employee was hired
in her office. Complainant alleged prior to the new employee coming on
board she received no recognition from S2 for running the office alone
for approximately five months.
h. On or about April 2, 2008, complainant alleged that S2 instructed
her to take him off of her voicemail as an alternate point of contact.
i. On or about April 2008, complainant alleged that during an
interview for a candidate to replace the Small Business Specialist
position, S2 made derogatory comments such as "nappy & greasy hair,"
and referenced her as being at the "bottom of the totem pole."
j. On or about March 27 2008, complainant alleged that the
Contracting Officer, misplaced her personnel folder in error. Although
the file was found, complainant alleged that "[she was] made to feel that
[she was] blowing the incident out of proportion."
k. On or about March 2008, complainant alleged that S2 originally
denied her request to attend the Society of American Military Engineers,
SAME conference. However, after he approved it, this caused a delay
because she was required to prepare a small business report. Complainant
did not receive information needed from the Contracting office, which
delayed her report and caused her to leave the SAME conference early
and work overtime at night to complete the report.
l. In February 2008, complainant alleged that when her
grandmother passed away, no one from her chain of command showed any
sympathy/support.
m. In February 2008, complainant alleged that during a conversation
with S2, he made comments that were "disgraceful" regarding her ancestors
and their slave masters. S2 also allegedly asked if complainant's
grandmother ever told her if they had any "good slave masters."
n. In February 2008, complainant alleged that she was not included in
the information that was distributed regarding the Acquisition Stand-Down,
although she is in the mandatory job series to participate as a presenter.
Complainant further alleged that S2 did not rectify this until she
obtained the information.
o. On or about January/February 2008, complainant alleged that former
Director of Contracting (DOC) and the Directorate of Contracting employee
(E2) were holding meetings concerning small business without complainant,
S2, or the Small Business Specialist.
p. On December 14, 2007, complainant alleged that the Small Business
office hosted a forum. Although complainant was the co-coordinator of
the event, she did not receive an award for hosting the forum; however
her assistant received an award.
q. On about 14 December 2007, complainant alleged that S2 suggested
that rather than take leave due to the death of her husband's family
member "it would be in the best interest of your career to stay for
the Forum." Complainant alleged that she lost annual leave because she
was not allowed to take time off work.
r. On or about December 2007, complainant alleged that S2 stated that
he was going to add another objective in her NSPS rating. Complainant
felt that the additional factor could impact her rating for 2008 cycle.
s. In November 2007, while talking with another employee, the
employee's supervisor was walking down the hall and the employee stated
"I'm dead, I'm dead" which made complainant feel shunned at work.
Complainant alleged that many employees were afraid to talk to her
because they saw how management was treating her and were afraid they
would also suffer by associating with complainant.
t. Complainant alleged (no specific dates provided) that S2
constantly tells complainant that he was responsible for persuading the
Commander to settle her EEO complaint that was settled in October 2007.
This allegedly made complainant feel indebted to him.
u. Complainant alleged (no specific dates given) that S2 had
Executive Office administrative employees keep tabs on complainant.
Complainant has been accused of being late to meetings or not present
at all while others casually walk into meetings but were not called out.
v. On January 27, 2008, complainant alleged a former employee (E3)
"counseled" complainant regarding complainant speaking harshly to a
student. E3 was not complainant's supervisor nor in her chain of command.
w. In January 2008, complainant alleged that S2 informed complainant
that she would not receive a student hire to assist while pending the
recruitment of a permanent employee.
x. On or about April 28, 2008, complainant alleged that the
Directorate of Contract personnel solicited complainant's input regarding
a matter/incident where she was the previous contracting officer (KO);
this matter was a major source involved in your prior EEO claim. However,
when complainant informed S2 of the incident, rather than addressing
complainant's "comfort level," she was told that it was "more appropriate
for him to address whether it was part of your job duties."
y. Complainant alleged that on October 22, 2007, S2 placed demands on
complainant that were not placed of her predecessors, two white females.
Complainant further alleged that S2 constantly told her that he "stuck
his neck out for [her]" and "went out on a limb for [her]" when he talked
the Commander into settling her initial EEO complaint.
The agency dismissed claims finding that complainant failed to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Further, the agency
dismissed claims (g) through (y) pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO contact.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 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). Upon review of the claim of harassment as a whole, we find
that the claim is sufficient to state a claim.
Further, the agency dismissed claims (g) through (y) pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO contact. The Supreme Court
has held that 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10,
2002). The Court further held, however, that "discrete discriminatory
acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges." Id. Finally, the Court held
that such untimely discrete acts may be used as background evidence in
support of a timely claim. Id. Upon review, we find that the events
alleged by complainant as support to for her claim of harassment.
As such, we conclude that the dismissal of claims (g) through (y) was
improperly dismissed.
Accordingly, upon review, we find that the agency's dismissal of the
complaint was inappropriate. As such, the agency's final decision
is reversed and the complaint is remanded for further processing in
accordance with the order below.
ORDER (E0408)
The agency is ordered to process the remanded claim of harassment 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
August 27, 2009
__________________
Date
2
0120091861
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120091861