01975871
02-08-2000
Danni Smith, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, (Fish & Wildlife Service, Agency.
Danni Smith v. Department of Interior (Fish & Wildlife Service)
01975871
February 8, 2000
.
Danni Smith,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of Interior,
(Fish & Wildlife Service,
Agency.
Appeal No. 01975871
Agency No. FWS95004, FWS95032, FWS95045, FWS96021, FWS96026
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaints of unlawful employment discrimination on
the bases of national origin (Cajun), sex (female), reprisal (prior EEO
activity), and mental disability (anxiety and depression), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,
et seq.<1> Complainant claims she was subjected to disparate treatment
and suffered harassment due to a hostile work environment over the
course of a two and one-half year period, from August 1994 to January
1996, alleging a total of 25 incidents in five separate complaints,
which have been consolidated for consideration. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is VACATED and REMANDED in accordance with the
following ORDER, and the applicable EEOC Regulations.
ORDER
1.) In its FAD, the agency dismissed the claim regarding incident 4 in
complaint FWS-96-026 for failure to state a claim and also for stating
the same claim as incident 3 of the same complaint. In incident 4,
complainant alleges that the Branch Chief (BC) stared at her while her
husband visited, and followed her husband out to the elevator when he
departed. We find that this dismissal was inappropriate because the
incident raises a claim of adverse treatment with respect to a condition
of employment. Specifically, we find that complainant is alleging that
BC's conduct was designed to harass and intimidate her (not her husband)
in a context different from that alleged in incident 3 of the same
complaint. In reading the Counselor's report and complainant's complaint
and supporting statements, incident 3 is describing staring conduct
occurring on an on-going basis during productive work time. However,
incident 4 describes the staring conduct occurring during a "break" type
period, and we find that it is analogous to the conduct taking place
during a lunch period or some other formal break time, such that it is
substantively different from that alleged in incident 3. Incident 4 also
includes the additional harassing conduct of BM following the husband
to the elevator, which was allegedly designed to further intimidate and
harass complainant (not her husband). Therefore, we do not find that
incident 3 and incident 4 are evidence of the same claim, and that
incident 4 does state a claim. Therefore, this case is REMANDED for
investigation and for the agency to issue a new final agency decision,
as described below.
2.) The FAD also concluded that complainant presented insufficient
evidence that she had a specific mental impairment which substantially
limited one or more major life activities as defined by the
Rehabilitation Act, thus failing to establish a prima facie case
of disability discrimination.<2> More specifically, at page 9 of
the FAD, the agency notes that complainant provided no evidence of a
mental disability. However, our review of the evidence reveals medical
records, medical reports, and physician statements, all pertinent to
this inquiry. Therefore, we find that this case must be REMANDED back
to the agency to consider this evidence and to issue a new final agency
decision, as described below.
3.) In complaint FWS 96-026, incident 8 states that BM failed to
approve a transfer sought by complainant as a means of reducing her
stress and easing her psychiatric symptoms. Incident 9 of the same
complaint states that the Center Chief refused to assist complainant by
placing her in a less stressful environment when she informed him that
her psychiatric condition had worsened to the point of her developing
suicidal ideation. Based on a fair reading of the Counselor's report
and complainant's complaint and supporting statements, we construe these
allegations as claims that the agency failed to provide complainant with a
reasonable accommodation. This issue was not investigated by the agency,
and the FAD did not address this issue. Therefore, we REMAND this case
for a supplemental investigation on this issue and for the agency to
issue a new final agency decision, as described below.
4.) The FAD identified only certain of complainant's alleged incidents
of discrimination as stating a claim of harassment due to a hostile
work environment. However, based on a fair reading of the Counselors'
reports and complainant's complaints and supporting statements, we find
that complainant is asking that all of her allegations be considered as
part of the pattern of harassment. Therefore, we REMAND this case for
the agency to conduct a supplemental investigation, if needed, and to
issue a new final agency decision, as described below.
5.) In reviewing the briefs submitted by complainant and the agency
on appeal, it is not clear whether the agency received a copy of the
complainant's appeal brief. In the future, we remind complainant of her
obligation to submit a copy of her appeal brief to the agency.
6.) The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of the
date this decision becomes final. Thereafter, the agency shall provide
the complainant, within thirty (30) calendar days from the date the
agency completes the supplemental investigation, an opportunity to
respond to the supplemental investigative report. The agency shall then
take any action appropriate and consistent with complainant's response,
and issue a new final agency decision within thirty (30) calendar days of
complainant's response or, if complainant fails to respond, within thirty
(30) calendar days following the last day complainant would have been
permitted to respond. Copies of the completed supplemental investigation
and new final agency decision must be submitted 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 [PAGE 5]
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2000
__________________
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.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.