01985549
02-07-2000
Benjamin Madrid, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Benjamin Madrid v. Department of the Treasury
01985549
February 7, 2000
Benjamin Madrid, )
Complainant, )
)
v. ) Appeal No. 01985549
Lawrence H. Summers, ) Agency No. 98-1223
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 6, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 15, 1998,
pertaining to his 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. <1> In his complaint, complainant alleged
that he was subjected to discrimination in retaliation for prior EEO
activity when:
On February 3, 1998, someone left a note with a derogatory reference
referring to harassment and reprisal on complainant's desk;
On February 26, 1998, complainant was denied administrative leave to
attend Ash Wednesday church services;
On January 13, 1998, complainant was approached by the Branch Chief
in a very unprofessional and irate manner;
On May 26, 1997, complainant was advised that a manager from the Federal
Law Enforcement Training Center (FLETC) was discrediting complainant's
credibility and reputation;
On June 6, 1997, after a quarterly observation and evaluation of
complainant's instruction performance of the CPR#3 class, complainant
received a rating less then he felt he deserved;
On April 8, 1997, after spraining his ankle, the Branch Chief refused to
assign complainant to an instructional class rather than a conditioning
class;
On January 24, 1997, complainant's manager approached him in an irate
tone which victimized complainant in front of his peers;
On January 25, 1997, complainant was rudely approached by the Branch
Chief and told not to wear spandex under shorts;
On November 25, 1996, the Branch Chief wrote complainant in as a
Stand-by-Instructor when he was not scheduled to be on stand-by;
On November 14, 1996, the Branch Chief allegedly stated that complainant
was a disgruntled, unhappy employee with a bad attitude;
On November 13, 1996, the Branch Chief allegedly stated that another
employee had a bad attitude and was not a team player just like
complainant;
In November 1996, complainant was not selected to share a private
office in the Physical Training Division (PTD) Building; and
On August 30, 1996, complainant questioned the Branch Chief about
being taken out of an assigned Immigration and Nationalization Service
(INS) class to instruct a U.S. Customs class and was told by the Branch
Chief he had a bad attitude.<2>
In addition, complainant alleged that the foregoing constituted harassment
which created a hostile work environment.<3>
The agency dismissed issues (1) - (3) on the grounds that complainant
failed to state a claim. With regard to issue (1), the agency argued that
complainant was not harmed by the unsigned note addressed to him and left
on his desk. Regarding issue (2), the agency stated that complainant
was not harmed by an agency action because the agency rescinded the
hour of annual leave charged to complainant and changed it to reflect
administrative leave. With regard to issue (3), the agency found that
complainant was not harmed by this incident because the Branch Chief
apologized to complainant about the incident forty-five minutes after
it occurred. In addition, the agency dismissed issues (4) - (13) on
the grounds that complainant failed to timely contact an EEO Counselor.
The agency noted that in his formal complaint, complainant stated that he
had been subjected to harassment since 1996. The agency stated that since
complainant did not contact an EEO Counselor until January 22, 1998, his
contact was beyond the forty-five day limitation period prescribed by EEOC
Regulations. The agency also addressed the complainant's allegation of
continued harassment under the continuing violation theory. The agency
relied on complainant's formal complaint in which complainant stated
that he was subjected to harassment since 1996, to show that complainant
had a reasonable suspicion on each alleged incidence of harassment in
his complaint. Finally, the agency considered whether complainant's
claim of harassment, hostile work environment, was sufficiently severe
or pervasive to alter the conditions of complainant's employment and
therefore actionable. The agency noted that most of complainant's
allegations involved management's verbal manner towards complainant.
The agency stated that complainant had not identified any specific term,
condition, or privilege of employment that was adversely affected by
the alleged behavior, except that complainant claimed his credibility
had been discredited, his ability to obtain future career advancements
had been impeded, and his reputation as an instructor had been harmed.
The agency found there was no evidence to justify complainant's perception
regarding his reputation as an instructor and concluded that complainant's
allegations were not sufficient or egregious to state a hostile work
environment claim.
On appeal, complainant states that he did not contact an EEO Counselor
until January 13, 1998, the date complainant received notice that he was
to be interviewed regarding a fellow employee's claim of discrimination,
because prior to this date he did not realize that the harassment he
was receiving from the Branch Chief resulted from his EEO activity.
With regard to issues (1) - (3), complainant claims he experienced
pain and suffering as well as mental anguish sufficient to state a
claim of discrimination. With regard to issues (4) - (13), complainant
claims that these issues fall within the continuing violation theory.
Complainant states that he experienced severe intimidation and harassment
over the period of August 1996 to February 1998, mostly at the hands of
the Branch Chief, who complainant alleged was attempting to prevent his
testimony in other EEO cases. Complainant states that between 1996 and
1998, four persons with the FLETC filed claims of discrimination and
that three of those claims named him as a witness. In response to the
agency's rejection of his hostile work environment claim, complainant
contends that he suffered multiple stress difficulties, as well as harm
to his reputation and career. Complainant states that as a result of
the January 13, 1998 incident, he was placed in training, details, and
special work assignments outside of the PTD. Complainant also notes that
he has taken more days off during his two years at the INS Academy than
ever before in his entire career due to the harassment and retaliation.
In response to complainant's appeal, the agency first addresses
complainant's claim of retaliation. The agency notes that complainant
alleges five incidents of harassment (issues (9), (10), (11), (12),
and (13)/(14)) that occurred before January 23, 1997, the date he
first participated in the EEO process as a witness. Therefore, the
agency claims that these alleged incidents of harassment could not
have occurred in retaliation for his protected activity, since the
protected activity occurred after the alleged events. According to
the agency, of the nine remaining issues, only issues (1), (2), and
(3) were timely filed; however, the agency notes that only issue (3)
occurred before the complainant filed his complaint and within 45 days of
his counselor contact. Thus, the agency examines the interrelatedness
between issue (3) and the untimely allegations. The agency finds the
remaining untimely allegations ((4), (5), (6), (7), and (8)) occurred
over a period of one year, and states that only issue (7) was of a
similar nature. The agency concludes that the remaining issues relate
to task assignments and issues complainant had with office policy.
Also, the agency states that the fact that five of the issues occurred
before complainant's first participation in the EEO process, make it more
apparent that complainant has not established a continuing violation.
The agency states that the only pattern involved in complainant's case
is his apparent disagreement with his supervisors on how he was to do
his job. Furthermore, the agency notes that the frequency and nature
of the events did not change after complainant's protected activity.
Lastly, the agency examines issues (1), (2), and (3) and concludes that
complainant did not state a claim of hostile work environment harassment.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
In the present case, we find that the agency improperly dismissed issues
(1), (2), and (3) for failure to state a claim. The agency examined
these incidents individually and found that complainant did not prove
that he suffered a harm or loss to a term, condition, or privilege
of employment. However, in his complaint complainant states that he
was subjected to a campaign of harassment against him by the agency
in retaliation for his prior EEO activity and thus, the agency should
have viewed these incidents in relation to a claim of harassment.
In addition, with regard to incident (2), although complainant did have
his leave restored, he was nonetheless harmed in that the agency allegedly
required him to use annual leave while not requiring other employees
to do the same in an effort to harass him. In addition, complainant
claims his leave was restored only after he filed his EEO complaint.
Since complainant asserts that the denial of his administrative leave
request, the placement of a derogatory note, and the treatment by his
Branch Chief were part of agency harassment, we find that the agency's
dismissal of these incidents for failure to state a claim was erroneous.
Therefore, issues (1), (2), and (3) are remanded for continued processing.
With respect to the agency's contention on appeal regarding issues (9),
(10), (11), (12), and (13)/(14), we note that in order to state a claim
of retaliation, complainant must first demonstrate that he has engaged in
protected EEO activity. Although on appeal, complainant claims he has
participated in protected EEO activity since 1996, he did not present
evidence of any involvement prior to January 23, 1997. Thus, issues
(9), (10), (11), (12), and (13)/(14) are vacated and remanded for a
supplemental investigation.
With regard to issues (4), (5), (6), (7), and (8), which the agency
dismissed for untimely EEO Counselor contact, we find that complainant
has established a continuing violation. In the FAD, the agency noted that
complainant alleged that issues (4) through (8) constituted a continuing
violation, but stated that since complainant claimed that he was subjected
to harassment since 1996, he had a reasonable suspicion of discrimination
on each alleged incidence of harassment such that he should have contacted
an EEO Counselor earlier. The time requirements for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. Moreover, evidence showing complainant
had or should have had a reasonable suspicion of discrimination more
than forty-five (45) days prior to initiating EEO Counselor contact will
not preclude acceptance of the overall claim of ongoing discrimination.
Ferguson v. Dept. of Justice, EEOC Request No. 05970792 (March 30, 1999);
Meaney v. Dept. of the Treasury, EEOC Request No. 05940169 (November 30,
1994); see generally Armstrong v. Dept. of the Treasury, EEOC Appeal
No. 01982573 (June 17, 1999), req. for reconsideration denied, EEOC
Request No. 05990860 (November 15, 1999). If one or more acts falls
within the time period for contacting an EEO Counselor, the complaint
is timely with regard to all that constitute a continuing violation,
provided the acts are interrelated by a common nexus. Meaney, supra;
Verkennes v. Dept. of Defense, EEOC Request No. 05900700 (September 21,
1990). Furthermore, where a complainant has shown that his or her timely
incident is interrelated to incidents outside the 45-day time limit,
the agency should not fragment complainant's claim by dismissing, under
the reasonable suspicion theory, specific identified incidents outside
the 45-day time limitation which are associated with or connected to the
subject matter and temporal scope of the complaint. Ferguson, supra;
Armstrong, supra.
In the present case, complainant's allegations are connected by his
claim that the actions were taken against him as part of a pattern of
continuing harassment based on retaliation. We note that the majority
of the incidents cited by complainant involve alleged harassment and
retaliation by the Branch Chief. Also, these issues do not involve
isolated incidents but rather occurred over an extended period of time.
For the foregoing reasons, the Commission hereby VACATES the final
agency decision regarding issues (9) through (14) and hereby REMANDS
these issues for further processing in accordance with the Commission's
ORDER set forth below. In addition, we find that issues (1) through
(8) were improperly dismissed and hereby REVERSE the agency's dismissal.
Issues (1) through (8) are REMANDED for further processing in accordance
with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
whether complainant engaged in EEO protected activity prior to January
23, 1997.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing indicating whether issues
(9) through (14) will be processed as part of complainant's retaliation
claim in accordance with the incidents accepted above. This notice
shall be incorporated into the notice acknowledging receipt of issues
(1) through (8).
The agency is ORDERED to process the remanded claims (1) through (8)
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
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 regarding issues (1)
through (8), including notice of whether issues (9) through (14) are to
be processed, 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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 7, 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 Equal Employment Assistant
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.
2In the agency's response to complainant's appeal, the agency adds issue
(14) On August 8, 1996, the Branch Chief personally approached two INS
instructors and asked them if they wrote certain comments on a survey
conducted in the Division.
3The informal counseling record indicates that complainant alleged
national origin as a basis for discrimination, however, in his appeal
complainant denies that he ever raised national origin as a factor.
Therefore, the basis of national origin will not be included in the
further processing of this complaint.