01990128
12-07-2000
Denise J. Brennan, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Denise J. Brennan v. Social Security Administration
01990128
December 7, 2000
.
Denise J. Brennan,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01990128
Agency No. 98-0603�SSA
DECISION
Upon review, the Commission finds that the instant complaint was
improperly dismissed on the by the agency for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
In her complaint, complainant claims that her �management team� subjected
her to retaliatory harassment for filing a prior complaint under
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Specifically, complainant contends that she had been receiving Office
of Workers' Compensation (OWCP) benefits and was assigned to restricted
duties because of her disability; and that while she was attending
a training class, a supervisor abruptly and rudely called her out
and issued her a memorandum dated June 22, 1998, stating that recent
medical evaluations of her disability indicated that she could perform a
full range of duties, and that she must commence to do so immediately.
Complainant claims that the memorandum was issued with the purpose
of harassing her in retaliation for filing a prior EEO complaint
concerning the agency's purported failure to provide her with reasonable
accommodations for her disability. As evidence, she makes reference
to the abrupt and rude manner in which the memorandum was issued, and
argues that the agency had no authority to issue the memorandum because
OWCP had not issued the required �suitability letter.� Complainant
also asserts that members of her management team acted to embarrassed
her, and to treat her in a hostile and threatening manner regarding the
demand that she return immediately to full duties, noting that repeated
meetings were conducted for this purpose. Complainant further contends
that during the period she performed the full range of duties as ordered,
she suffered substantial physical and emotional ills.
The regulation set forth at 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. An agency shall accept a complaint from any aggrieved
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,
.106(a). 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 (April 21, 1994).
However, in Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the
Supreme Court found that harassment is actionable, even absent a claim
that an agency's action harmed complainant in a specific term, condition
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as 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). Moreover, we note that the Commission takes a broad view
of reprisal claims, wherein a complainant may state a claim by showing
�any discrimination [adverse action] which is reasonably likely to
deter protected activity.� See EEOC Compliance Manual, "Investigating,
Analyzing Retaliation Claims," paragraph 8-II(D)(3).
In this case, the record confirms that OWCP's suitability letter was
issued on July 29, 1998, more than one month after issuance of the
agency's memorandum ordering complainant to immediately undertake
full and unrestricted duties. We note too that OWCP soon rescinded
its suitability letter, on August 4, 1998. Therefore, given the full
circumstances under which the June 22, 1998, memorandum was issued to
complainant, the purported overtly hostile treatment by members of her
management team, and the physical pain and stress which complainant
claimed to experience while performing the ordered full duties, we find
that complainant has stated an actionable claim of harassment due to a
hostile work environment under the legal standards cited above.
Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim is REVERSED. The complaint is
hereby REMANDED for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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
December 7, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.