Diane Allen, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency). Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01994858 (E.E.O.C. Dec. 28, 2000)

01994858

12-28-2000

Diane Allen, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency). Agency.


Diane Allen v. Defense Logistics Agency

01994858

December 28, 2000

.

Diane Allen,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency).

Agency.

Appeal No. 01994858

Agency No. JQ-99-026

DECISION

Based on a review of the record, we find that the agency improperly

dismissed complainant's complaint, pursuant to EEOC Regulation 29

C.F.R.1614.107 (a)(1), for failure to state a claim.<1>

On March 3, 1999, complainant filed a formal complaint, claiming that

she was the victim of unlawful employment discrimination on the basis of

sex when on January 7, 1999, a co-worker grabbed her and kissed her and

when on January 17, 1999, after taking corrective action, the co-worker

improperly telephoned her to give �an end business�figure for a report.

The agency dismissed the complaint for failure to state a claim. The

agency stated that although the co-worker's action was inappropriate ,

it did not constitute an employment action which caused complainant to

suffer any personal loss or injury.

Complainant in her appeal states that the agency wrongly defined the

issues in her complaint and dismissed it. She claims that she is the

victim of sexual harassment and the agency failed to take corrective

remedial action. She claims that on January 7,1999, her co-worker came

up to her, grabbed her so that she could not move, and kissed her face

in a very harsh and unwelcome manner. She also claims that even after

she complained about this incident to management, that co-worker was

assigned to overtime in her area. She states that on January 17, 1999,

the co-worker called her with no purpose other than to let her know that

he was working overtime, for the purpose of harassing her. She further

states that on January 31, 1999, the co-worker was again assigned to

work overtime with her and he came to her office and stared at her to

harass her. Accordingly, complainant claims that the harassment continues

and the agency failed to take any remedial action to stop it.

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).

A review of the record indicates that the complainant is claiming that she

is a victim of sexual harassment at her work place and despite notifying

the agency about the inappropriate actions of the co-worker the agency

failed to take appropriate remedial action to remedy the situation. The

Commission finds that complainant has stated a claim. Accordingly, the

agency's decision to dismiss the complaint for failure to state a claim

was not proper and is REVERSED. The complaint is REMANDED for further

processing as ordered 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 28, 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 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.