Diane Cliatt, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01a00950 (E.E.O.C. Aug. 9, 2000)

01a00950

08-09-2000

Diane Cliatt, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Diane Cliatt v. Department of Transportation

01A00950

August 9, 2000

.

Diane Cliatt,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A00950

Agency No. 3-99-3080

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.<1> The final agency decision was issued

on November 22, 1999. The appeal was postmarked December 29, 1999.

Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).<2>

ISSUE PRESENTED

The issue presented is whether the agency properly dismissed the entire

complaint on the grounds of failure to state a claim and the first claim

of the complaint also on the grounds of untimely EEO contact.

BACKGROUND

Complainant initiated contact with an EEO Counselor on March 17, 1999.

In a formal EEO complaint dated June 1, 1999, complainant claimed that

she was subjected to discriminatory harassment on the bases of her sex

(female) and religion (unspecified). The incidents referenced in the

complaint were defined by the agency as follows:

1. On November 20, 1998, a male coworker informed her that he did

not want her to talk to him, and when management was informed of this

behavior, she was told that the coworker was allowed to behave in this

manner.

2. On March 5, 1999, the same male coworker came into the radar room

to coordinate equipment checks and when he was told that he had to

coordinate with complainant or the supervisor, he turned and started to

walk out rather than coordinate with complainant.

Complainant also claimed in her complaint that on December 1, 1998,

she was informed that the same male coworker had falsely accused her

and a female coworker of �coming on to him.�

In its final decision, the agency dismissed the matters referenced above

as claims 1-2 on the grounds of failure to state a claim. The agency

determined that no concrete action was taken against complainant and

therefore, complainant did not suffer a loss or harm with respect to

a term, condition, or privilege of her employment. The agency stated

that a remark or comment must be accompanied by a concrete action in

order for a complainant to suffer sufficient injury to be aggrieved.

The first claim was also dismissed on the grounds that complainant

failed to contact an EEO Counselor in a timely manner. The agency

determined that complainant's initial EEO contact on March 17, 1999,

was more than 45 days after the alleged incident of November 20, 1998.

The agency did not address the claim that the relevant male coworker

had accused complainant and a female coworker of �coming on to him.�

On appeal, complainant argues that the male coworker at issue has

subjected women in the work facility to a hostile work environment.

According to complainant, this coworker has berated women for speaking

to him or he ignores women altogether. Complainant claims that

the agency failed to take necessary action to remedy the situation.

Complainant states that the only action taken against the coworker was

a brief suspension. According to complainant, women have been told to

break the normal chain of command by reporting equipment failures to

their managers rather than to the male coworker while male employees

can report directly to him. Complainant states that recent incidents

have occurred such as the male coworker's continued refusal to speak

to women in the office; continuing episodes of shouting at women and

ignoring women; holding his hand up in the face of women when spoken to;

refusing to make eye contact when spoken to; abruptly interrupting female

coworkers during their conversations with male employees; and turning

abruptly and facing the nearest wall whenever a woman passes near him.

Complainant argues that this behavior is sexually based and is degrading,

offensive, and discriminatory toward women. Complainant claims that the

continuing violation theory is applicable to her complaint. According to

complainant, the hostile work environment created by the coworker and

maintained by the agency reflects an ongoing pattern and practice of

discrimination.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. �1614.107(a)(1)) 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 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. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29

C.F.R. �1614.103); �1614.106(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 22, 1994).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find [it]

hostile or abusive:� and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive 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).

In the present complaint, complainant claimed that she was subjected to

discriminatory harassment based on her sex and religion. Complainant

claimed that a male coworker informed her that he did not want her to

talk to him and that management tolerated this behavior; that he refused

to coordinate equipment checks with her; and that he accused her and

a female coworker of �coming on to him�. On appeal, complainant states

that recent incidents that have occurred include the coworker's continuing

refusal to speak to women in the office; episodes of him shouting at women

and ignoring women; holding his hand up in the face of women when spoken

to; refusing to make eye contact when spoken to; abruptly interrupting

female coworkers during their conversations with male employees; and

turning abruptly and facing the nearest wall whenever a woman passes

near him in the offices. We note that the agency improperly failed to

address the claim concerning complainant being accused of �coming on

to� the male coworker. We find that all of the incidents raised in the

complaint and on appeal suggest that the alleged discrimination may have

been pervasive. Viewing the complaint in the light most favorable to

complainant, we find that complainant stated a cognizable claim under

the EEOC Regulations. See Cervantes v. United States Postal Service,

EEOC Request No. 05930303 (November 12, 1993).

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 29 C.F.R. � 1614.105(a)(1)) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Complainant initiated contact with an EEO Counselor on March 17, 1999.

As indicated above, we find that complainant is raising a claim of a

hostile work environment. The cited incidents are ongoing and involve

the same coworker. Therefore, complainant's EEO contact on March 17,

1999, was timely with regard to her entire complaint.

Accordingly, the agency's decision to dismiss the complaint is REVERSED.

The entire complaint, as redefined in this decision, is hereby REMANDED

to the agency for further processing in accordance with the Order below.

ORDER (E0400)

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).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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 Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

August 9, 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 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 record does not establish when complainant received the final

agency decision. Absent evidence to the contrary, we find that the

instant appeal was timely filed.