01a05469
09-15-2000
Cameron Watson, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Cameron Watson v. Department of Commerce
01A05469
September 15, 2000
.
Cameron Watson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05469
Agency No. 00-63-01278D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint for failure to state a claim. In its July 26, 2000 dismissal,
the Field Office defined the complaint as alleging complainant was
discriminated against on the basis of age, was sexually harassed, and
was retaliated against after he filed an EEO complaint. The Field
Office noted that complainant did not wish to pursue his age claim.
Concerning sexual harassment, the Field Office found that the responsible
individual was removed from complainant's office when the charges were
levied, and was terminated after the claims were investigated. Concerning
complainant's retaliation claim of failure to promote, the Field Office
found that complainant was offered a promotion which he declined; he was
released when the term of his prior position expired. The Field Office
noted that complainant never claimed that anyone promoted in front of
him was unqualified for their positions. Based on its analysis, the
Field Office determined that the agency had not acted with discriminatory
animus, and dismissed the complaint for failure to state a claim.
On appeal, complainant argues that the sexual harassment consisted
of a co-worker constantly talking about having a �Tonga Party� that
female coworkers must attend topless, poking complainant in the ribs
on numerous occasions, telling complainant that female coworkers think
complainant is homosexual, asking complainant if he is bisexual, and
attempting to put his finger in complainant's mouth. Complainant admits
that the coworker eventually was terminated, but claims that the agency
initially promoted the coworker after complainant filed his complaint.
Complainant also claims that the coworker returned to complainant's
office on several occasions to speak with complainant's colleagues, and
to exclude complainant. Complainant also asserts that several coworkers
were promoted before complainant despite complainant's superior work
experience, education, and seniority. When finally offered a promotion,
complainant contends that the agency told him that he could return to his
old position. He argues that the old position had not expired, and that
several others performed the same position after its supposed expiration.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm to a term, condition, or privilege of employment
inflicted on the basis of race, color, religion, sex, national origin,
age, disability, or prior protected activity. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In determining the reasons for the agency's failure to promote complainant
or place him in the job of his choice, the Field Office improperly
addressed the merits of complainant's claims without the benefit of
an investigation. Its findings concerning a lack of discriminatory
animus are irrelevant to the procedural issue of whether complainant
has stated a cognizable claim. Complainant alleged harm to a term,
condition, or privilege of employment in his failure to promote and
sexual harassment claims. The harassment, as described by complainant,
is sufficiently severe and pervasive to render complainant aggrieved.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997) (requiring factfinder to view all incidents of harassment
together in a light most favorable to complainant).
CONCLUSION
Accordingly, the Field Office's dismissal is REVERSED, and the claims
are REMANDED for further processing.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum
of Understanding referenced in this decision, conduct settlement
negotiations on the instant complaint or notify complainant that the
complaint has been accepted and forward the complaint to the agency for
further investigation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.