Archibald M. Martin, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 18, 2002
01A03966 (E.E.O.C. Jul. 18, 2002)

01A03966

07-18-2002

Archibald M. Martin, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Archibald M. Martin v. Department of the Navy

01A03966

July 18, 2002

.

Archibald M. Martin,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A03966

Agency No. DON 96-680-84-002

DECISION

Complainant filed an appeal with this Commission from an agency decision,

issued on April 6, 2000, regarding his complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On February 20, 1996, complainant filed a formal complaint claiming he

was discriminated against on the basis of age. The agency framed the

claims as follows:

(a) On September 14, 1995, the Department Head of Occupation Health and

Preventive Medicine harassed complainant for failing to see a patient

on a clinic visit;

(b) On August 31, 1995, the Department Head discussed complainant's

arriving late at work, when he was not late;

(c) From 1993 to 1995, complainant received unequal credit for clinic

patient visits;

(d) From 1993 to 1995, complainant was ordered to stay until 1610 when

other HCP are not also required to do this;

(e) In August or September 1993, the Department Head ordered his daughter

to kick complainant in the leg;

(f) In the spring of 1994, the Department Head threatened to slap

complainant's face if complainant told him again that he did not

appreciate the clinic schedule problems; and,

(g) On May 18 and 25, 1995, the Department Head made derogatory remarks

about complainant's gray hair and forgetfulness.

On April 1, 1996, the agency issued a decision dismissing claims (a),

(b), and (c) for failure to state a claim. Claim (d) was dismissed for

failure to state a claim and untimely counselor contact. The agency

also dismissed claims (e), (f) and (g) for untimely counselor contact.

Complainant appealed the agency's decision to the Commission.

With respect to claims (a) - (d), the Commission found that the agency

improperly considered the incidents individually, rather than part of

a broader claim of harassment. See Archibald M. Martin v. Department

of the Navy, EEOC Appeal No. 01964219 (March 6, 1998). Consequently,

claims (a) - (d) were found to state a claim and the agency's decision

to dismiss those claims was reversed. See id. The Commission also

noted that although complainant claimed that he was subjected to

"recurring incidents" of discrimination, the agency failed to conduct

a continuing violation analysis before dismissing claims (e) - (g)

for untimely counselor contact. See id. Consequently, the agency's

dismissal of claims (e) - (g) was vacated that the agency was ordered

to conduct a supplemental investigation to determine whether complainant

had established a continuing violation. See id.

In compliance with the Commission's order, the agency issued a new

decision regarding claims (e) - (g) on April 6, 2000. The agency

determined that complainant failed to establish a continuing violation,

and therefore "the agency's prior decision to dismiss your complaint

. . . remains in force." Specifically, the agency reasoned that claims

(a) and (b) were unsupported by a concrete action and did not render

complainant an aggrieved employee. Therefore, according to the agency,

the claims could not be considered part of a continuing violation.

Similarly, the agency found that claims (c),(d), (e) and (f) were not

sufficiently severe or pervasive to alter the conditions of complainant's

employment. Moreover, the incidents should have triggered complainant's

awareness when the occurred, but complainant failed to assert his rights

at that time. With respect to claim (g), the agency noted that remarks

alone do not render one an aggrieved employee. The agency concluded

that complainant failed to establish, through claims (a) - (g), that

he was an aggrieved employee, and that "[i]n order to consider the

continued violation theory the employee or individual would have to

be aggrieved." With no continuing violation established, the agency

dismissed the complaint.

On appeal, complainant, through his attorney, argues that a continuing

violation was established. Complainant asserts that "these series of

events were recurring and chronic for a period commencing in 1993 to

1995." Complainant argues that the claims are linked by a common theme,

namely the Department Head's general displeasure with the presence of

complainant due to his age. For almost two years he was purportedly

subjected to "a patently hostile and discriminatory work environment on

a daily basis. . . ."

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

As an initial matter we note that in its April 6, 2000 decision

the agency erroneously stated that claims (a) - (d) did not render

complainant an "aggrieved" employee and were not sufficiently severe

or pervasive to alter his working conditions. The agency stated that

its "prior decision to dismiss [the] complaint . . . remains in force."

As noted above, the Commission's earlier decision found that claims (a) -

(d), considered together, comprised one broader claim of discriminatory

harassment. We determined that claims (a) - (d) stated a claim and were

improperly dismissed by the agency. Only claims (e) - (g) were remanded

for a supplemental investigation, and possible dismissal.

The prior Commission decision ordered the agency to reconsider the

timeliness of claims (e) - (g). In response the agency again found

that the claims were untimely and that no continuing violation had been

established, since the timely claims, in the agency's view, failed to

state a claim. The Commission, however, disagrees. We find that a fair

reading of the instant complaint reflects that complainant is claiming

a pattern of harassment as evidenced by all the incidents set forth in

his complaint, claims (a) - (d) and (e) - (g). Moreover, we find that

complainant's EEO Counselor contact regarding his claim of harassment is

timely, by virtue of the September 14, 1995 (failing to see a patient)

and August 31, 1995 (late to work) incidents.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

court found that harassment is actionable, even absent a claim that

an agency's action harmed complainant in a specific term, condition

privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating

a hostile work environment, and that the conduct is sufficiently severe

or pervasive as to alter the conditions of the complainant's employment.

The trier of fact must consider all of the alleged harassment incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

Here, complainant claims that he was ordered to stay until 1610 on an

ongoing basis and continuously given unequal credit for clinic patient

visits. Complainant was also purportedly subjected to remarks and

comments regarding his work and age. Further, this series of events

all involve complainant's Department Head. Therefore, we find that

this complaint, including claims (e) - (g), is sufficient to state an

actionable claim of harassment based on the legal standards set forth

above, and that the agency improperly dismissed the claims on the grounds

of untimely EEO Counselor contact.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E0900)

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 (K0501)

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 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 (M0701)

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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 18, 2002

__________________

Date