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.