01985695
09-03-1999
Andrea Westbrooks, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Andrea Westbrooks, )
Appellant, )
)
)
v. ) Appeal No. 01985695
) Agency No. 9667001028
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") 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 dated
June 30, 1998. The appeal was postmarked July 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.
ISSUE PRESENTED
The issues on appeal are whether the agency properly dismissed appellant's
complaint for failure to state a claim, untimely contact with an EEO
officer, and failure to cooperate.
BACKGROUND
The record indicates that on April 30, 1996, appellant initiated contact
with an EEO Counselor regarding her complaint. On July 2, 1996, appellant
filed a formal complaint, alleging that she was subjected to a hostile
work environment, harassment, and sexual harassment on the bases of
race (Black) and sex (Female). Appellant alleged that her second-line
supervisor stares at women's bodies and tells dirty and offensive jokes;
that an employee was called a �black bitch�; that other white employees
slap, hit and push other employees; that she was docked pay; that she
was denied review of her position; and that in general she is treated
differently than other white employees with regards to leave, workload,
deadlines, and communication with her supervisors.<1>
On October 3, 1996, the agency issued a final decision accepting three
allegations for investigation (treatment with regards to leave, docking
of pay and communication within the chain of command). The agency
dismissed the other allegations for either untimeliness or failure to
state a claim. Specifically, the agency dismissed allegations that
appellant's second-line supervisor stared at women's bodies and told
dirty and offensive jokes, other employees slapped, hit and pushed other
employees, and appellant was denied review of her position for untimely
contact with an EEO Counselor. The allegations involving unequal
treatment with regard to leave, workload, deadlines, communication and
that appellant's second-line supervisor stared at women's bodies and
told dirty and offensive jokes were dismissed because appellant did
not suffer a personal loss or harm with respect to a term, condition,
or privilege of employment and thus failed to state a claim.
Appellant, thereafter, filed an appeal with the Commission. In a
decision dated March 10, 1998, the Commission remanded the case to the
agency for a determination of whether the allegations were timely under
a continuing violation theory, whether the allegations stated a claim,
and ordered the agency to request information from the appellant with
regard to when the denials of her review occurred. On June 30, 1998,
the agency issued a final decision dismissing most of the remanded issues
for untimeliness and failure to state a claim. The agency dismissed
the denial of review allegation for failure to cooperate. It is this
decision that the appellant appeals to the Commission.
ANALYSIS AND FINDINGS
The Commission has previously held that when confronted with claims
involving multiple allegations, an agency should not ignore the �pattern'
aspect of a complainant's allegations and define the issue in a piecemeal
manner where an underlying theme unites the matters complained of.
Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November
3, 1994); Ferguson v. Department of Justice, EEOC Request No. 05970792
(March 30, 1999); Drake v. Department of the Air Force, EEOC Request
NO. 05970689 (March 29, 1999). Appellant alleges that her first-line
and second-line supervisors harassed her and created a hostile work
environment with regard to the working conditions within the office.
The Commission thus finds that there is an underlying theme within the
matters complained of. We also find that the same two people (appellant's
first and second line supervisors) committed the alleged acts. Thus,
the allegations should be treated as a continuing violation. As such,
these allegations state a claim of a hostile work environment.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period for
contacting an EEO Counselor. See McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal Service,
EEOC Appeal No. 01890412 (April 6, 1989). The Commission finds that
there is a sufficient nexus between the issues the agency accepted and
the aforementioned incidents of harassment it found timely. Therefore,
the Commission finds that those incidents should be accepted as timely
under the continuing violation theory.
The agency dismissed the allegation of denial of review for failure
to cooperate. EEOC Regulation 29 C.F.R. �1614.107(g) provides that
the agency shall dismiss a complaint or a portion of a complaint where
the agency has provided the complainant with a written request to
provide relevant information or otherwise proceed with the complaint,
and the complainant has failed to respond to the request within 15
days of its receipt or the complainant's response does not address the
agency's request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
An agency's decision to invoke the provisions of 29 C.F.R. �1614.107(g)
should be made only when there is a clear record of delay or contumacious
conduct by the complainant. Connally v. Papachristid Shipping Ltd.,
et al., 504 F.2d 917 (5th Cir. 1974). Further, we have held, as a
general rule, that an agency should not dismiss a complaint where it
has sufficient information on which to base an adjudication. See Ross
v. USPS, EEOC Request No. 05900693 (August 17, 1990).
We find that the agency's decision to dismiss the denial of review
allegation for failure to cooperate was improper. Specifically, we note
that in its final decision, the agency found that appellant failed
to respond "during the requisite time frame" to a letter dated April
22, 1998, that purportedly directed her to clarify the date of the
allegation of denial of review. The record does not, however, contain
copies of the agency's letter or evidence of appellant's receipt of this
correspondence. Clearly it is the burden of the agency to have evidence
or proof to support its final decision. Marshall v. Department of the
Navy, EEOC Request No. 05910685 (September 6, 1991). Because there is no
evidence in the record regarding the contents of the agency's letter or
of appellant's receipt of the letter, we find that the record does not
support the agency's dismissal of the denial of review allegation for
failure to cooperate.
CONCLUSION
Accordingly, we REVERSE the agency's decision and remand appellant's
complaint for investigation. The agency shall comply with the Order of
the Commission stated below.
ORDER (E1092)
The agency is ORDERED to 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 acknowledgment 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. �1614.10.
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. �l6l4.604(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:
09-03-99 ____________________________
DATE Carlton M. Hadden, Acting Director
1 This is a condensed version of appellant's allegations. The
agency should look to the formal complaint for a more detailed
description of her allegations.