05970939
04-04-2000
David M. Carroll, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
David M. Carroll v. Department of the Army
05970939
April 4, 2000
David M. Carroll, )
Complainant, )
)
) Request No. 05970939
) Appeal Nos. 01964668
) 01964669
Louis Caldera, ) Agency Nos. 9604G0200
Secretary, ) 9604G0210
Department of the Army, )
Agency. )
______________________________)
GRANTING OF REQUEST TO REOPEN
Complainant timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Carroll v. Department of the Army, EEOC Appeal No. 01964668 and 01964669
(June 17, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision where
the party demonstrates that: (1) the previous decision involved clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency.<1> 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter referred to as 29 C.F.R � 1614.405(b))
The issue in this case is whether the agency properly dismissed
complainant's complaints for failure to state a claim and for stating
the same claim that is pending before or has been decided by the agency
or the Commission.
Complainant filed a formal EEO complaint (Complaint 1) on August 24,
1995 claiming discrimination on the bases of sex (male); national origin
(American); and reprisal (prior administrative grievance) when, from
May 25, 1995 until July 18, 1995, the agency took eleven various claimed
discriminatory actions against him. On December 28, 1995, complainant
filed another formal EEO complaint (Complaint 2) claiming discrimination
on the basis of reprisal (prior EEO activity) when from June 20, 1995
until November 6, 1995, the agency took five claimed discriminatory
actions against him.<2>
The previous decision found that it was first necessary to examine
complainant's complaints as ones claiming harassment which created a
hostile or abusive work environment. The previous decision concluded that
complainant's claims were insufficient to state a hostile work environment
claim. Viewing the claims individually, the previous decision dismissed
all but the following claim: whether complainant was discriminated
against on the bases of sex and national origin when his "supervisor
relieved him of a number of duties described in his job description with
the most recent incident being May 25, 1995. Additionally, he no longer
has the responsibility for preparation of the papers Welcome Edition or
the decision-making capacity he believes he should have on the selection
and content of stories." The previous decision dismissed the remaining
claims in Complaint 1 and four of the claims in Complaint 2 for failure
to state a claim. The remaining claim in Complaint 2 was dismissed for
stating the same claim stated in Complaint 1.
In 64 Fed.Reg. 37,644,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1)) the regulation provides, in relevant
part, that an agency shall dismiss a complaint, or portion thereof,
that fails to state a claim. An agency shall accept a complaint from any
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;
� 1614.106(a).
The Commission identifies two types of harassment that could result in
liability: harassment that results in a tangible employment action;
and harassment that creates a hostile work environment. Enforcement
Guidance: Vicarious Employer Liability for Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
This case appears to center on whether complainant stated a claim of
harassment based on a hostile working environment. Unless the conduct
complained of is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996).
In determining whether a harassment complaint states a claim in cases
where a complainant had not claimed disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims, when
considered together and assumed to be true, were sufficient to state a
hostile or abusive work environment claim. See Miller v. U.S. Postal
Service, EEOC Request No. 05941016 (June 2, 1995). 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. To state a hostile or abusive work environment
claim, a complainant must claim facts which, if proven true, would
show that the complainant may have been subjected to harassment that
was sufficiently severe or pervasive enough to alter the conditions of
his or her employment. Cobb v. Treasury, EEOC Request No. 05970077
(March 13, 1997).
Regarding complainant's claim that his spouse was harassed, we agree with
the previous decision that complainant has no standing to raise such
a claim under any circumstances. The previous decision also properly
held that discrimination based on reprisal for having filed a grievance
is not protected under Title VII; the record shows that complainant did
not raise discrimination in his grievance.
Regarding the remaining claims, in Complaints 1 and 2, complainant
raised 16 claims of alleged harassing behavior by his supervisor which
occurred between May 1995 and November 1995. These claims included
various claims of unfavorable memorandums; instances of interference
with work assignments; and several instances in which he claimed that
he was threatened and inappropriately criticized. After considering the
frequency of the agency's claimed discriminatory conduct, its severity,
whether it could have unreasonably interfered with complainant's work
performance, and other relevant factors, the Commission finds that
complainant has stated valid claims of harassment based on a claimed
hostile and abusive working environment. We disagree with the previous
decision that complainant only claimed a few isolated instances of
harassment. With specific regard to Complaint 2, claiming reprisal
discrimination, the Commission notes its policy of viewing reprisal
claims with a broad view of coverage; under present Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment; a complainant
is protected from any discrimination which is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation;"
No. 915.003 (May 20, 1998), p. 8-15. In Complaint 2, complainant
raised claims of being considered a problem employee and disruptive,
and receiving memorandums questioning his willingness to do his job and
insinuating that he was breaking regulations regarding compensatory
time; such actions occurred within a six month period following the
filing of the first complaint. Accordingly, we find that the agency
shall consider Complaint 2 as a claim of reprisal discrimination as
well as a claim of discriminatory harassment. In summary, we conclude
that complainant claimed facts which, if proven true, could conceivably
constitute discriminatory harassment and/or reprisal.
Accordingly, after a review of complainant's request for reconsideration,
the previous decision and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to GRANT complainant's
request. The decision of the Commission in Appeal Nos. 01964668 and
01964669 is REVERSED and complainant's complaint is REMANDED for further
processing in accordance with the ORDER below. There is no further
right of administrative appeal from the decision of the Commission on
this request for reconsideration.
ORDER (E1199)
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).
COMPLAINANTS' 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:
April 4, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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
1 On 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.
2 These sixteen allegations were clearly stated in the previous decision
and will not be restated herein.