Eric W. Gibson, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01A02415 (E.E.O.C. Jul. 6, 2000)

01A02415

07-06-2000

Eric W. Gibson, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Eric W. Gibson v. Department of Justice

01A02415

July 6, 2000

Eric W. Gibson, )

Complainant, )

)

v. ) Appeal No. 01A02415

) Agency No. F-99-5310

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

On November 27, 1999, complainant filed a timely appeal with this

Commission from an agency's decision pertaining to 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

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office regarding claims of discriminatory

harassment based on race and reprisal. Informal efforts to resolve

complainant's concerns were unsuccessful. Subsequently, on February 11,

1999, complainant filed a formal complaint. The agency framed the claims

as follows:

1) On January 4, 1999, complainant was required to submit to a second

reasonable suspicion drug test;

2) On January 7, 1999, the Special Agent in Charge told complainant

that he did not believe any of the events surrounding the recent Office

of Professional Responsibility (OPR) investigations of complainant

constituted harassment;

3) On January 27, 1999, the mother of complainant's daughter informed

complainant that the FBI contacted her in an attempt to obtain medical

records for his daughter;

4) On February 1, 1999, the Security Unit at FBI Headquarters (FBIHQ)

requested that complainant travel to FBIHQ for an interview regarding

his trustworthiness to maintain a Top Secret clearance;

5) On an unspecified date, the Security Unit requested that complainant

provide a letter from his doctor regarding his fitness for duty, and a

list of medicines prescribed by his doctor; and,

6) In October 1998, complainant was required to travel to FBIHQ for an

interview regarding several OPR investigations.

On October 25, 1999, the agency issued a decision dismissing the complaint

for failure to state a claim. Specifically, the agency determined

that none of the matters alleged, even when considered together,

rendered complainant an "aggrieved" employee. The agency found the

claims to concern only preliminary steps to an employment action.

The agency further determined that claims 4 and 6 were addressed in

prior complainants, Case Nos. F-99-5355 and F-99-5297.

On appeal, complainant contends that the instant complaint is part of

"a series of discriminatory actions" taken by the agency. According to

complainant, following his interview at FBIHQ, he was suspended without

pay. Complainant argues that he has been aggrieved by the agency's

actions.

In response, the agency maintains that its dismissal of the complaint

was proper and requests that the agency affirm its decision.

The regulation set forth at 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, .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).

The only proper questions in determining whether a claim is within the

purview of the EEO process are (1) whether the complainant is an aggrieved

employee and (2) whether he has alleged employment discrimination covered

by the EEO statues. An employee is "aggrieved" if he has suffered direct

and personal deprivation at the hands of the employer. See Hobson

v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).

Here, complainant contends he was discriminated against on the bases

of race and retaliation during events stemming from an investigation

by the Office of Professional Responsibility.<2> The alleged incidents

include submitting to a second drug test and traveling to headquarters for

additional interviews. Complainant's claim of harassment is sufficient

to render him an "aggrieved" employee. Because he has alleged that the

adverse actions were based on race and reprisal, he has raised a claim

within the purview of the EEOC Regulations.

We note that the agency contends that the claims are only preliminary

steps to an employment action. The Commission finds, as noted above,

that the alleged incidents comprise complainant's larger claim of

harassment. 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))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). 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.

Further, the agency indicated that claims 4 and 6 were addressed in

prior complaints. However, the agency's contention is not supported by

the record. The agency has failed to provide documentation regarding the

prior complaints. Clearly it is the burden of the agency to have evidence

or proof to support its final decision. See Marshall v. Department of

the Navy, EEOC Request No. 05910685 (September 6, 1991).

Accordingly, the agency's dismissal of the complaint was improper and is

REVERSED. The complaint is REMANDED to the agency for further processing

in accordance with this decision and 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:

July 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2We note that although complainant raises his subsequent suspension

on appeal, it is not the subject of his complaint.