David M. Carroll, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 4, 2000
05970939 (E.E.O.C. Apr. 4, 2000)

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.