Barbara E. Von Thun, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 24, 2000
01a02163 (E.E.O.C. May. 24, 2000)

01a02163

05-24-2000

Barbara E. Von Thun, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Barbara E. Von Thun, )

Complainant, )

)

v. ) Appeal No. 01A02163

Togo D. West, Jr., ) Agency No. 98-0988

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant filed an appeal with this Commission from an agency's decision

received by complainant on August 28, 1998 dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In her

complaint, complainant alleged that she was subjected to discrimination

and ongoing harassment on the basis of physical disability (unspecified)

when:

On January 20, 1998, complainant was moved into Room 669 and not provided

all the equipment needed to perform her job;

On January 21, 1998, complainant was sent a message from her supervisor

(S1), stating among other things, that complainant would not be

paid overtime to accomplish her chart reviews. Complainant further

alleged that her supervisor refuses to pay complainant overtime for the

work required to meet the deadlines for the Nursing Service Quality

Improvement Plan (NSQIP) and demands. Complainant alleged that her

supervisor told her to do all work in her regular forty (40) hours,

or on her own time, or take compensatory time;

Complainant was subjected to ongoing harassment as follows:

Deadlines set by the supervisor are not required by the Nursing Service

Quality Improvement Plan (NSQIP);

S1 complained about complainant using sick leave but did not complain

about usage by other members of her staff;

S1 complained that complainant did not do her job fast or efficient;

When S1 brought someone in to train complainant (Outside Reviewer), she

stated that complainant was the problem not any other person or service.

Complainant learned nothing from the Outside Reviewer to help with

accuracy or efficiency;

Complainant was not provided the clerical support necessary to perform her

job. S1 had her secretary or clerk monitor and/or supervise complainant

then report back to S1 about what complainant does. Complainant alleged

also that her secretary or clerk frequently walked into complainant's

office and muttered demeaning comments that disrupts complainant's work;

When complainant is not at work, the charts are transferred requiring

six weeks or longer for them to be returned;

No matter how complainant explains or answers S1's questions or comments,

she always criticized and harassed complainant about her work, or the

way complainant performed her work.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure

to state a claim. With regard to claim (1), the agency stated that

complainant was moved to a �private office� to reduce the noise

level, which prior to the move, made it difficult for complainant to

concentrate on her charts. In addition, the agency stated that Room

669 had essentially the same amenities as the medical records office.

With regard to claim (2), the agency stated that the record does not

show any specific request/denial for overtime, thus, complainant did not

show a harm or loss to a term, condition, or privilege of employment.

Finally, with regard to the remaining harassment claims, the agency

stated that complainant failed to show she suffered a personal loss or

harm with regard to a term or condition of employment. In addition,

we note that in response to complainant's appeal, the agency argues that

the appeal should be dismissed as untimely filed.

Complainant responded to the agency's appellate arguments in a January

10, 2000 letter, in which she states that her appeal was filed in a

timely manner.<2> In support of her argument, complainant produces a

letter dated December 2, 1999, in which the agency's Office of Resolution

Management (ORM) acknowledged that it received complainant's appeal on

September 23, 1998.

The record contains a copy of complainant's September 23, 1998 appeal in

which complainant sent to ORM the EEOC Form 573 and a letter in which

she makes a formal request to appeal the ORM decision to dismiss her

complaint. The record also contains an October 19, 1998 letter from ORM,

in which it responds to an October 5, 1998 FAX from the agency's Office

of General Counsel (OGC), informing ORM that complainant had appealed

the agency decision to the EEOC's Office of Federal Operations (OFO).

The Commission has held that where proper appeal rights have been given,

an appeal is untimely filed where the appeal is mailed to the wrong

office, even if it would have been timely filed if mailed directly to

the Commission. See Henry v. Department of Veterans Affairs, EEOC

Request No. 05901116 (November 30, 1990). In several recent cases,

however, the Commission has allowed exceptions to the Henry rule, where

it was evident that the complainant was earnestly attempting to preserve

his appeal rights. See Jones v. Department of Veterans Affairs, EEOC

Request No. 05981170 (September 30, 1999)(confused complainant filed

appeal addressed to Commission with agency); See Rodriguez v. Department

of the Air Force, EEOC Request No. 05940933 (June 2, 1995)(complainant

timely filed appeal with agency's EEO Office); Orr v. Tennessee Valley

Authority, EEOC Request No. 05930311 (March 11, 1994) (appeal filed with

agency EEO Office, but agency failed to promptly forward the appeal to

the Commission).

In the present case, we find that complainant attempted to preserve

her appeal rights in a timely fashion when she initially mailed her

appeal to the agency. Specifically, we rely on the December 2, 1999

correspondence by ORM noting that it received complainant's appeal on

September 23, 1998, and stating that it received an October 5, 1998

letter from OGC acknowledging that complainant wished to appeal the

agency's final decision. In addition, the record contains an October 19,

1998 letter from ORM to OGC responding to OGC's October 5, 1998 letter,

requesting copies of complainant's file to respond to her appeal to OFO.

In the December 2, 1999 letter, OGC notes that it contacted OFO to inquire

as to the status of complainant's appeal, and at that time discovered that

there was no record of receipt of the appeal with the Commission. Thus,

we find that based on the confusion by both the agency and complainant,

the Commission exercises its discretion to accept the appeal as timely.

We now address the agency's grounds for dismissing complainant's

complaint.

With regard to issue (1), we find that the agency's argument that

complainant was moved to a �private office� to reduce the noise level, and

that Room 669 had essentially the same amenities as the medical records

office, improperly addresses the merits of complainant's complaint.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111

(July 19, 1996); Lee v. United States Postal Service, EEOC Request

No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal

Service, EEOC Request No. 05910642 (August 15, 1991). In issue (1),

complainant alleges an adverse action by management affecting the location

of her work area and the equipment needed to perform her job. Therefore,

we find that issue (1) constitutes a loss or harm to complainant's

conditions of employment and does state a claim.

With regard to issue (2), the agency argues that since complainant

has not been denied overtime yet, she has not stated a claim. We note

that the supervisor's statement that complainant would not be afforded

overtime to accomplish her chart reviews, clearly affects complainant's

ability to accomplish her work and adversely impacts her employment.

Thus, we find that complainant has stated a claim.

In determining whether a harassment complaint states a claim in cases

where a complainant had not alleged disparate treatment regarding a

specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment claims,

when considered together and assumed to be true, were sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,

1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,

the trier of fact must consider all of the circumstances, including the

following: the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's

work performance. Harris, 510 U.S. at 23.

In the present case, we find that complainant has stated a claim of

harassment. We note that complainant has alleged several incidents,

occurring from November 1997 through January 1998, which included

allegations regarding deadlines for submitting work, lack of clerical

support for complainant, transferring of the charts necessary for

complainant to do her work, and other instances where her work was

disrupted. We find that the incidents identified in issue (3) are

sufficiently severe or pervasive to state a claim of harassment.

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

was improper and is REVERSED and the complaint is REMANDED for further

processing in accordance with the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

May 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.

2We note that complainant's January 10, 2000 letter is identified by the

Commission as the date complainant appealed to the agency's August 1998

final decision.