01995252
05-03-2000
Elijio Resendez, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Elijio Resendez, )
Complainant, )
)
v. ) Appeal No. 01995252
) Agency No. 99-2106
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his 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 dated May
11, 1999. The appeal was postmarked June 16, 1999. Accordingly,
the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to 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).
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that he failed to state a claim.
On April 9, 1999, complainant filed a complaint alleging harassment
because of his previous EEO related activity when:
1. He was scheduled to be off-duty over the holiday weekend of February
15, 1999, but upon his return to duty the following Monday, nothing had
been done in his work area.<2>
2. On March 1, 1999, he pulled a linen cart into the room for dirty
linen. A-1 and a co-worker were sitting there and talking. Complainant
asked if they could empty the cart while he went to retrieve another cart.
When he returned, the cart had not been emptied.<3>
3). On March 23, 1999, he and a co-worker returned from lunch, A-1
approached him and asked if he had been to lunch. A-1 did not, however,
ask the other employee the same question.
The agency issued a final decision on May 11, 1999 dismissing
complainant's complaint for failing to state a claim. According to the
agency, complainant did not establish that he suffered a loss or harm
with respect to a term, condition, or privilege of his employment.
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 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. 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).
Where a complainant does not suffer a present harm or loss regarding a
term, condition, or privilege of employment, he or she may still allege
harassment where the complaint's claims, taken together and treated as
true, are sufficient to state a hostile or abusive environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). A hostile or abusive work environment claim requires that a
complainant allege facts which, if proven true, may indicate that the
complainant was subjected to harassment that was severe or pervasive
enough to alter the conditions of his or her employment. Id. In making
such a determination, the Commission has considered �whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive.� Id.
With respect to claims (1) and (2), we find that complainant stated
a claim because these matters, if true, would have affected a term,
condition, or privilege of his employment. With respect to claim (3), we
note that in Carroll v. Department of the Army, EEOC Request No. 05970939
(April 3, 2000), the Commission reaffirmed its policy of viewing reprisal
claims with a broad view of coverage. Citing EEOC Compliance Manual,
EEOC Order No. 915.003, �Retaliation,� p. 8-15 (May 20, 1998), the
Commission, in Carroll, held that �[c]laimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment.� Therefore, a complainant is protected from any
discrimination which is reasonably likely to deter protected activity. Id.
In summary, we find that complainant claimed facts which, if proven true,
could conceivably constitute discriminatory harassment and/or reprisal.
The agency shall consider claims (1), (2), and (3) as a claim of reprisal
discrimination as well as a claim of discriminatory harassment. It is the
decision of the Commission to REVERSE the agency's dismissal of claims
(1), (2), and (3) and to REMAND these matters for further processing in
accordance with this decision and applicable regulations.
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:
__05-03-00_______ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2According to the complainant, the normal procedure when an individual
is off-duty is to have another employee assigned to work in that area.
Complainant claimed that A-1, his supervisor, deliberately harassed him
by not assigning anyone to his area.
3According to complainant, A-1 would have made sure the cart would have
been emptied for any other employee.