01985954
09-15-1999
Challis Broughton, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Challis Broughton v. Department of Energy
01985954
September 15, 1999
Challis Broughton, )
Appellant, )
)
v. ) Appeal No. 01985954
) Agency No. 96(150)OR
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. Appellant received the final agency decision
on June 12, 1998. The appeal was received by the Commission on June 29,
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 issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 9, 1996.
On August 15, 1996, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his
sex (male), national origin (Native American), and in reprisal for
his previous EEO activity. In his formal EEO complaint, appellant
stated that physical and administrative constraints were swiftly and
decisively imposed upon him because of alleged threats of violence
against his ex-wife, without consideration for the truth by management.
Appellant stated that since May 9, 1996, management has tried to dilute
the extent of their inappropriate actions. Appellant stated that his
guilt was assumed from the outset. According to appellant, since May
9, 1996, he has been ridiculed because of his Native American heritage
and beliefs. Appellant stated that management is retaliating against
him by giving him the cold shoulder because of this complaint.
In its initial final decision, the agency dismissed appellant's complaint
on the grounds of failure to state a claim. The agency determined that
appellant was not aggrieved. Thereafter, appellant filed an appeal with
the Commission.
In Challis Broughton v. Department of Energy, EEOC Appeal No. 01974480
(March 31, 1998), the Commission vacated the final agency decision and
remanded the complaint for appellant to be given an opportunity to clarify
the actions that he intended to raise in his complaint. The Commission
noted that in the EEO Counselor's report, appellant alleged that he was
subjected to numerous discriminatory actions after his ex-wife accused
him of threats of violence, including restrictions upon his movement in
the workplace, oral and written reprimands, and threats of disciplinary
action. The Commission found that although appellant failed to identify
the specific agency actions that he intended to raise in his complaint,
the agency apparently did not request that he provide clarification.
Upon remand, on April 13, 1998, the agency forwarded to appellant a
request that he identify the agency actions that were taken against
him following the accusations of threats of violence on May 9, 1996,
the dates of these actions, and the agency officials involved.
In a letter dated April 27, 1998, appellant notified the agency that
over the last two years, he has suffered mentally, physically, and
professionally as a result of the treatment of him by agency managers.
Appellant attached to the letter a summary of the relevant agency actions.
Among the events referenced by appellant were that on May 9, 1996, it
was ordered that his keypad access to the building where his ex-wife and
another individual worked be removed; that also on May 9, 1996, his acting
supervisor threatened that he would be fired for threats of violence,
that he was not to have any contact with his ex-wife, and that he was not
to visit the building where his ex-wife and another individual worked;
that on May 13, 1996, he was issued a letter of reprimand by his acting
supervisor concerning the alleged threats and restrictions to be placed
upon him; that in mid-June 1996, he learned that his acting supervisor
still had the letter of reprimand in his possession despite the fact that
in a memorandum dated May 31, 1996, this official had notified appellant
that the letter of reprimand had been rescinded and destroyed; that on
July 1, 1996, he filed a grievance concerning accusations made against him
on May 9, 1996, and the grievance was denied; effective August 18, 1996,
he was reassigned to the Quality Management Team and he was told to stop
all grievances; highly visible work assignments were taken aware from him;
he has been working without a performance plan since his reassignment;
he has not received a performance rating since the rating period ending
December 31, 1995; his acting supervisor scorned his native American
artifacts; a Branch Chief insulted his heritage; in September 1996,
a co-worker referred to Native Americans as "savages;" and in November
1996, his personal belongings were defiled and when he complained,
he received a reprimand for failure to back the belongings in a box.
In the final decision at issue, the agency dismissed appellant's complaint
on the grounds of failure to state a claim. The agency determined that
appellant's response of April 27, 1998, failed to include the respective
dates of the alleged incidents and the agency officials involved.
The agency further determined that appellant did not clarify the actions
that he intended to raise in his complaint. Finally, the agency concluded
that appellant did not state how he suffered some personal loss or harm
with respect to a term, condition, or privilege of employment.
On appeal, appellant contends that he adequately stated a claim.
Appellant argues that his complaint was not objectively considered by
the agency because the complaint poses a threat to management.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, appellant alleges that he was subjected to harassment
by management. The alleged harassment consisted of, inter alia,
the denial of keypad access to the building where his ex-wife worked;
issuance of a letter of reprimand; threats of termination; reassignment;
denial of a performance plan and rating; and ridicule of his Native
American heritage. These incidents all occurred from May 1996 through
November 1996. We find that the close proximity of time over which the
alleged harassment occurred strengthens appellant's claim of a hostile
work environment. Further, considering that the identified actions
were all perpetrated by management officials, principally appellant's
supervisor, and viewing the identified remarks and comments in the
light most favorable to appellant, we find that appellant has stated a
cognizable claim under the EEOC Regulations. See Cervantes v. United
States Postal Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to state a claim was improper.
Finally, we note that appellant also raises an allegation that his
grievance filed on July 1, 1996, was improperly denied. We find that
appellant's challenge to the dismissal of the grievance constitutes
a collateral attack. The Commission has held that an employee cannot
use the EEO complaint process to lodge a collateral attack on another
proceeding. Kleinman v. United States Postal Service, EEOC Request
No. 05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 24, 1993).
CONCLUSION
The agency's decision to dismiss appellant's complaint for failure to
state a claim is MODIFIED. Appellant's allegations, with the exception
of the allegation regarding the denial of his July 1, 1996 grievance,
are hereby REMANDED to the agency for further processing in accordance
with the Order 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. �1614.410.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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. If you file a request to reconsider and also file a
civil action, 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:
Sept. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations