Dorothy Martinez, Appellant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01991757 (E.E.O.C. Oct. 5, 1999)

01991757

10-05-1999

Dorothy Martinez, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Dorothy Martinez v. Department of Energy

01991757

October 5, 1999

Dorothy Martinez, )

Appellant, )

) Appeal No. 01991757

v. )

) Agency No. 98(128)OAK

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision 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., and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is accepted in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to state a claim, failure to contact timely an

EEO counselor, and stating a claim already decided by the agency.

BACKGROUND

Appellant filed a formal complaint<1> on August 10, 1998, alleging

discrimination on the bases of race (Mexican-American), sex (female),

age (42), and reprisal (prior EEO activity) when<2>,

(1) on March 10, 1998, the EEO manager wrote a memo to her supervisor

accusing her of harassing him and telling lies about him;

(2) in April 1998, upon questioning the EEO manager about the memo and

expressing her opinion that she believed it to be retaliatory, the EEO

manager threatened that he was going to show her how things were done;

(3) on or about October 7, 1997, the EEO manager verbally assaulted and

harassed her, angrily screaming derogatory remarks about Hispanics while

shaking his hand and pointing his finger in her face;

(4) in November 1997, in a meeting to discuss the alleged harassment,

the EEO manager continued his harassment of her by screaming that he was

going to go to her new supervisor and have her (appellant) taken care of;

(5) upon reporting the EEO manager's actions to her supervisor as well to

his superiors, management did not take effective or appropriate actions

to protect her from further harassment or retaliation;

(6) the EEO manager refused to give her EEO counselor access to her

previous EEO paperwork as she had requested;

(7) on May 12, 1998, the EEO manager continued his harassment of her by

requesting to a small-business person that he (the small-business person)

call him (the EEO manager) back to report what she (the appellant)

had said regarding small business opportunities; and

(8) upper management negatively changed her job duties and

responsibilities to prevent her from further advancement or promotion.

In its final agency decision, the agency dismissed allegations (1) -

(5), (7) and (8) pursuant to 29 C.F.R. �1614.107(a) upon concluding that

they failed to state a claim. The agency reasoned that the alleged

occurrence of these events did not amount to a direct and personal

deprivation sufficient to render an individual aggrieved for purposes

of Title VII. Further, the agency found that these allegations did

not adversely affect a term, condition, or privilege of employment.

Allegation (4) was dismissed on additional grounds, i.e., for failure to

comply with the time limits contained within 29 C.F.R. �1614.105(a)(1)<3>.

With respect to allegation (6), the agency concluded that it was the

subject of a formal complaint filed on April 28, 1998 and disposed of in

a decision dated August 5, 1998, and therefore, dismissed it accordance

with 29 C.F.R. �1614.107(a). This appeal followed.

ANALYSIS AND FINDINGS

Failure to State a Claim

EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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 21, 1994).

In determining whether a harassment<4> complaint states a claim in

cases where a complainant had not alleged disparate treatment regarding

a specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment allegations,

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).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment allegations are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that allegations of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Moreover, the Commission has repeatedly found that

remarks or comments unaccompanied by a concrete agency action usually are

not a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. See Backo v. U.S. Postal

Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal

Service, EEOC Request No.05940695 (February 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,

1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Also, 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.

After a careful review of the file, the evidence reveals that the

agency examined the allegations in an individual manner. However, the

Commission has held that where, as here, an agency is confronted with

claims involving multiple allegations, it should not define the issues

in the complaint individually if an analogous theme unites the matters

contained therein. Instead, the agency should look at these incidents,

in the aggregate, as a claim of harassment. See Meaney v. Department

of the Treasury, EEOC Request No. 05940169 (November 3, 1994). In the

present case, we find that appellant's allegations concerned an "analogous

theme" or agency objective that united the alleged discriminatory acts

set forth in the complaint, i.e., subjecting her to threatening and

harassing remarks and actions on the bases of race, age, and reprisal.

Consequently, when appellant's allegations<5> are viewed in the context

of harassment, they do state a claim and the agency's decision to dismiss

them for failure to do so was improper.

Stating a Claim Already Decided by the Agency

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that an

agency can dismiss a complaint, or a portion thereof, that states a claim

that is pending before or has been decided by the agency or Commission.

According to the final agency decision, allegation (6) was raised in

appellant's April 28, 1998 formal complaint<6> and was dismissed by the

agency in a decision dated August 5, 1998. The information contained in

the August 5, 1998 decision indicates that this issue was the subject of

a previous complaint filed by appellant. As such, we find that allegation

(6) was properly dismissed pursuant to 29 C.F.R. �1614.107(a).

CONCLUSION

Accordingly, the decision of the agency, with respect to allegations

(1) - (5), (7) and (8), was erroneous and is, therefore, REVERSED and

REMANDED for further processing in accordance with this decision and the

proper regulations. Conversely, the agency's decision as to allegation

(6) is AFFIRMED.

ORDER

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108.<7> The agency shall acknowledge to the

appellant that it has received the remanded allegations within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to appellant a copy of the investigative file and also shall

notify appellant 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 appellant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Oct. 5, 1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 In the formal complaint, appellant alleges that she was subjected to

sexual harassment. In the final decision, the agency dismissed this as an

issue after finding that none of the alleged discriminatory events were

sexual in nature. On appeal, appellant states that she is not pursuing

a claim on that basis. As such, the sexual harassment allegation will

not be addressed.

2 Appellant, in her statement on appeal, argues that the agency, in its

final decision, improperly framed the issues contained in her complaint.

In citing the allegations, we list them as appellant does in her statement

on appeal. However, we note that there is not an appreciable difference

in appellant's characterization of her allegations and the agency's

description of them in its final decision.

3 Allegation (3), which occurred about one month before allegation (4),

was not dismissed on this basis.

4 See generally, Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).

5 In addition to being dismissed for failure to state a claim, allegation

(4) was also dismissed pursuant to 29 C.F.R. �1614.107(b) as violative

of the time requirements contained within 29 C.F.R. �1614.105(a)(1),

i.e., failure to contact an EEO counselor within forty-five days (45)

of the alleged discriminatory event. However, when the issue is whether

appellant initiated contact with an EEO counselor in a timely manner

and when appellant raises a series of related discriminatory acts, one

of which fell within the time period for contacting an EEO counselor,

the agency is obligated to conduct a continuing violation analysis.

See, Guy v. Department of Energy, EEOC Request No. 05930703 (December

16, 1993). After a careful examination of the allegations in this case,

the Commission finds that the continuing violation doctrine is applicable.

Upon applying the doctrine, we hold that due to the analogous theme,

discussed herein, of appellant's allegations, allegation (4) should not

have been dismissed as untimely.

6 Agency case number 98(084)BPA

7 The Commission notes that, in this particular case, the EEO manager has

been named as the alleged harasser. As such, we advise the agency that

he should not have any direct or indirect control over the investigation,

nor should he have supervisory authority over the individual who conducts

the investigation. However, whomever conducts the investigation should be

well-trained in the skills that are required for interviewing witnesses

and evaluating credibility (i.e., an EEO official located in another

part of the agency). Note 4, supra, at 22.