Christina Easter, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a01890 (E.E.O.C. Jul. 12, 2000)

01a01890

07-12-2000

Christina Easter, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Christina Easter v. Department of the Treasury

01A01890

July 12, 2000

Christina Easter, )

Complainant, )

)

v. ) Appeal No. 01A01890

) Agency No. 99-3237

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision pertaining to her 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. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission

accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. �1614.405).

On July 26, 1999, complainant contacted the EEO office regarding claims of

discrimination based on race, sex, and age. Informal efforts to resolve

complainant's concerns were unsuccessful. Subsequently, on August 18,

1999, complainant filed a formal complaint. The agency framed the claims

as follows:

On July 12, 1999 complainant became aware that management had delayed

the processing of her request for advance sick leave; and,

Complainant was subjected to ongoing harassment and a hostile work

environment when management repeatedly snapped at her and engaged in

unprofessional behavior towards her.

On November 26, 1999, the agency issued a decision dismissing

the complaint. Specifically, claim 1 was dismissed as moot. Claim

2 was dismissed for failure to state a claim and untimely Counselor

contact. Regarding complainant's sick leave request (claim 1), the agency

determined that complainant's request had been approved and her records

amended on August 13, 1999. With respect to the claim of harassment

(claim 2), the agency noted that it had asked complainant to provide

information describing specific incidents. Following complainant's

response, the agency determined that the alleged harassment by

complainant's manager began in November 1998 and included incidents such

as: standing over complainant's shoulder; interrupting complainant;

hollering; and treating complainant in an unprofessional manner.

According to the agency, complainant failed to show how the alleged events

affected a term, condition, or privilege of her employment. Further,

the agency determined that complainant should have contacted the EEO

office earlier and that claim 2 was not part of a continuing violation.

On appeal, complainant contends that claim 1 is not part of her complaint.

Complainant explains that she informed the Counselor that she �was not

worried about [her] compensation because the manager had already stated

[that her] time cards would be amended....� Further, complainant argues

that the numerous incidents of harassment she alleged are sufficient to

state a claim of harassment.

In response, the agency reiterates the determinations made in their

decision and requests that the Commission affirm their dismissal.

Claim 1

As noted above, on appeal complainant contends that the agency �has made a

finding regarding a claim that was not part of my complaint, specifically

claim 1) ....� Further, complainant states that she explained to the

EEO Counselor that she was not worried about her compensation since the

manager indicated she would receive her back pay. Therefore, in light

of complainant's assertions that claim 1 is not part of the instant

complaint, we will not address this matter any further.

Claim 2

The regulation set forth at 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.

Commission policy holds that harassment claims are sufficient to state

a claim when, considered together and assumed to be true, they are

sufficient to state a hostile or abusive work environment claim. See

Miller v. United States Postal Service, EEOC Request No. 05941019

(June 2, 1995). Consistent with the Commission's policy and practice

of determining whether a complainant's harassment claims are sufficient

to state a hostile or abusive work environment claim, the Commission

has repeatedly found that claims of a few isolated incidents of alleged

harassment usually are not sufficient to state a harassment claim. See

Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030

(July 12, 1996); Banks v. Health and Human Services, EEOC Request

No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly

found that remarks or comments unaccompanied by a concrete agency action

usually are not a direct and personal deprivation sufficient to render an

individual aggrieved for the purposes of Title VII. See Backo v. United

States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry

v. United States Postal Service, EEOC Request No.05940695 (February 9,

1995).

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). 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.

Here, the agency dismissed claim 2 for failure to state a claim, finding

that the incidents described by complainant in her September 1999 letters

were isolated and not sufficiently severe or pervasive to create a hostile

work environment. As noted in the agency's decision, complainant claimed

she was harassed when her manager stood over her while she work; hollered

at her; interrupted her while speaking with others; snapped at her; and

treated her in an unprofessional manner. We find that these claims, if

true, describe ongoing incidents which would have unreasonably interfered

with complainant's work performance. Moreover, although the agency found

the events to be isolated, the record indicates the alleged harassment

occurred for six months prior to complainant contacting the EEO office

and continued thereafter. Consequently, we find that complainant has

stated a claim of discriminatory harassment.

Claim 2 was also dismissed by the agency for untimely counselor

contact. Volume 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified and

hereinafter referred to as 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 she was not notified of the

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

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

or the Commission.

Complainant contacted the EEO office on July 26, 1999. A fair reading

of complainant's complaint reflects that complainant alleged that she

was the victim of a comprehensive pattern of harassment that commenced

more than forty-five days prior to her initial EEO Counselor contact

and have continued beyond her initial EEO Counselor contact. Moreover,

in her appeal statement, complainant contends that the harassment is

ongoing, and she describes incidents with her manager which occurred in

August and October 1999. Therefore, we find that because complainant

has alleged a pattern of harassment, including events that occurred both

before and after her Counselor contact, we find the claim is timely.

The agency's decision dismissing claim 2 was improper and is REVERSED.

Claim 2 is REMANDED to the agency for further processing in accordance

with this decision and 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:

July 12, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.