01960764and01963676
11-05-1996
ALICIA A. MANALO, APPELLANT, v. JOHN H. DALTON, SECRETARY, DEPARTMENT OF THE NAVY, AGENCY.
ALICIA A. MANALO, APPELLANT,
v.
JOHN H. DALTON, SECRETARY, DEPARTMENT OF THE NAVY, AGENCY.
Appeal Nos.
01960764
, 01963676
Agency Nos.
DON-95-00207-003, DON-96-00207-001
November 05, 1996
DECISION
INTRODUCTION
On November 11, 1995, and April 12, 1996, appellant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from final decisions of the agency concerning her complaints 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. These two interrelated appeals have been consolidated by the Commission for a single decision. The Commission hereby accepts the appeals in accordance with EEOC Order No. 960.001.
ISSUES PRESENTED
The issues on appeal are whether the agency, pursuant to 29 C.F.R. � 1614.107, properly dismissed: (1) portions of appellant's Complaint No. 1 for failure to state a claim and because one issue had not been raised with an EEO counselor; and (2) appellant's Complaint No. 2 for failure to state a claim and because one issue stated the same claim as that raised in Complaint No. 1.
BACKGROUND
At the time this matter arose, appellant was employed as a Secretary in the Chapel Center at the Naval Air Station in Jacksonville, Florida.
Final Agency Decision on Complaint No. 1
On August 7, 1995, appellant contacted an EEO counselor and raised allegations that she was being subjected to a continuing pattern of daily harassment by her two chaplain-supervisors since at least June 5, 1995. Appellant presented the counselor with a written list of over twenty-five examples of this alleged harassment. On September 5, 1995, appellant filed a formal written complaint (Complaint No. 1) asserting she had been discriminated against on the bases of her race/national origin (Filipino), color (brown) and/or reprisal (for seeking EEO counseling on August 7, 1995) when her two chaplain-supervisors subjected her to daily maltreatment and harassment. In her complaint, appellant stated that she was under the care of a doctor and psychiatrist as a result of the discriminatory harassment. Appellant appended documents to her complaint detailing numerous examples of the alleged harassment, some of which she characterized as "sexual harassment."
By memorandum dated November 8, 1995 (Final Agency Decision No. 1), the agency issued appellant a notice of partial acceptance and partial rejection of the allegations raised in Complaint No. 1. Some incidents referred to by appellant in her complaint as examples of harassment were accepted by the agency. Specifically, the agency accepted an allegation relating to a denial of leave on the 4th of July (1995) weekend and one relating to appellant's August 1, 1995 performance rating. Many of the other examples of harassment cited by appellant in her complaint were not mentioned at all in the agency's decision. The agency dismissed appellant's allegations of "sexual harassment" for failure to raise it with the EEO counselor; [FN1] dismissed appellant's allegation concerning the denial of her request for annual leave to attend her son's graduation because her supervisor eventually reconsidered and approved the leave; and dismissed reprisal as a basis of appellant's complaint because she had no EEO activity preceding the incidents which formed the basis of her complaint. Appellant appealed this decision to the Commission, and it has been docketed as EEOC Appeal No. 01960764.
Final Agency Decision on Complaint No. 2
On January 19, 1996, appellant filed another EEO complaint (Complaint No. 2), in which she alleged she had been discriminated against on the bases of her race/national origin (Filipino), color (brown), sex (female) and/or reprisal for prior EEO activity when "[h]arassment took place constantly on a daily basis that started on June 5, 1995 until August 7, 1995..."In addition, appellant asserted in her complaint that after August 7, 1995, when she sought EEO counseling for the harassment, various agency officials engaged in a pattern of reprisal against her. For example, she stated that the chaplain-supervisors behaved abusively towards her and her husband on the day she filed Complaint No. 1. She also asserted that after she was detailed away from the Chapel Center, her new supervisor issued her an intimidating letter on October 16, 1995, directing her to cease all communications with employees in the Chapel Center. Finally, appellant alleged that several members of the EEO and Employee Relations staff repeatedly failed to respond to her written communications.
On March 15, 1996, the agency issued its final decision (Final Agency Decision No. 2) dismissing Complaint No. 2. With regard to the harassment issue, the agency dismissed it on the grounds that it was the same claim as that raised in Complaint No. 1. Concerning the failure to respond to appellant's communications, the agency disputed this claim stating appellant had received responses. Therefore, the agency characterized this allegation as "moot." Finally, with regard to the issue of the October 16, 1995 letter warning her to cease communications with the Chapel Center staff, the agency stated that it was being dismissed because appellant could not show she was harmed by the action and because it had been mooted by the fact that she no longer worked under the supervisor who issued the letter. Appellant also appealed this decision, and it is docketed as EEOC Appeal No. 01963676.
ANALYSIS AND FINDINGS
There has been much confusion on the part of both appellant and agency concerning the characterization of appellant's allegations in both her complaints. Although, at times, appellant has used the term "sexual harassment" in her written communications concerning her complaints, it is clear from the numerous examples cited by appellant in the attachments to her complaints, as well as the record as a whole, that appellant is complaining about a discriminatory pattern of race/national origin and gender-based, but nonsexual, harassment by her two chaplain-supervisors. [FN2] The EEO counselor's report reveals that this is precisely the issue appellant raised when she contacted the counselor on August 7, 1995. Therefore, the Commission finds that the agency erred, in Complaint No. 1, in accepting two isolated examples of the alleged harassment, while dismissing, for lack of EEO counseling, the larger issue raised by appellant that she had been subjected to a pattern of continuous harassment at the hands of the two chaplain-supervisors.
Moreover, in considering an allegation of a pattern of continuous harassment, the agency cannot disregard certain examples of the harassment because the supervisors later rescinded the action. For example, appellant has alleged that her supervisor denied her request for leave to attend her son's graduation and then later reconsidered and granted the leave. Despite the fact that appellant eventually had her leave request approved, this incident should be considered as part of the relevant evidence on the issue of whether or not appellant was the victim of a pattern of harassment. In a pattern of harassment case, the remedy, if appellant should prevail, is broader than providing a remedy for each individual example of the harassment. The remedy, among other things, must provide a mechanism to ensure that the harassment permanently ceases and must redress appellant for any harm caused by the accumulation of incidents. For example, if appellant were to prevail in this case she would be entitled to be restored to her position in the Chapel Center without being placed under the supervision of the two chaplain-supervisors.
The agency is correct that in Complaint No. 2, appellant raised the pattern of harassment issue again. No doubt this occurred because the agency essentially dismissed the issue in Complaint No. 1. Therefore, to clarify this matter, the agency should consolidate Complaints Nos. 1 and 2. Once consolidated, the Commission finds that the first issue the agency should accept for investigation is whether appellant was discriminated against on the bases of her race/national origin (Filipino), color (brown) and gender (female) when, in 1995, she was allegedly subjected to a pattern of continuous harassment by her two chaplain-supervisors.
The second issue which appellant has raised in her complaints is an allegation that after she sought EEO counseling on the harassment she was subjected to a pattern of reprisal on the part of the two chaplain-supervisors, her new supervisors, and the agency's employee relations and EEO staff. In making this allegation, the Commission finds that appellant has stated a claim. In a close community such as the Naval Air Station, it is not inconceivable that an individual who is thought, albeit mistakenly, to have charged two priests with "sexual" harassment would be the subject of retaliatory activity. The agency has denied the allegations of reprisal and, in part, dismissed portions of appellant's complaint based on those denials. Whether or not appellant's allegations of reprisal are substantiated must be determined following an investigation. Therefore, the Commission finds that the agency should also accept the pattern of reprisal issue as part of the processing of appellant's consolidated complaints.
CONCLUSION
Accordingly, the agency's final decisions cancelling portions of Complaint Nos. 1 and 2 were improper and are VACATED. The complaints are REMANDED to the agency for further processing in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to consolidate Complaints Nos. 1 and 2 and process the remanded allegations in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations 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 acknowledgement 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 an 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 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:
Ronnie Blumenthal
Director
Office of Federal Operations
FN1. As will be explained in greater detail later in this decision, due to miscommunications between appellant and the agency, the agency mischaracterized appellant's allegations of gender-based, as well as race/national origin-based, harassment as a claim of "sexual" harassment.
FN2. Commission regulations define "sexual harassment," as opposed to gender-based harassment, as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature..." 29 C.F.R. � 1604.11(a). It is clear that appellant has not alleged sexual misconduct on the part of her supervisors. Rather, she asserts she was subjected to a pattern of harassing behavior because of her gender, race, color and national origin.