05990567
11-05-1999
Frances V. Ransom, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Frances V. Ransom, )
Appellant, )
) Request No. 05990567
v. ) Appeal No. 01973205
) Agency Nos. 94-4146; 94-4201;
Lawrence H. Summers, ) 94-4244; 94-4002
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION ON REQUEST TO RECONSIDER
On March 31, 1999, the agency timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in Ransom v. Department of the Treasury, EEOC Appeal No. 01973205
(February 24, 1999). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, it is the
decision of the Commission to deny appellant's request but to reconsider
the prior decision on its own motion.
The issue presented herein is whether the previous decision properly
affirmed in part and reversed in part the final agency decision (FAD),
which partially dismissed appellant's complaint. According to the FAD,
the agency terminated the appellant's employment, effective August 17,
1996, after the appellant had been on leave since June 7, 1994, and
in leave without pay status since July 18, 1994. At issue are four
formal complaints involving alleged discrimination based on disability
(manic-depressive disorder) and retaliation (prior EEO activity),
arising from March 15, 1994, through August 15, 1994.
The FAD defined 22 allegations raised by the appellant in her four
complaints which the agency consolidated for decision. The decision
dismissed allegations 1-6 of complaint number 94-4146; allegations 1, 5,
and 6 of complaint number 94-4201; allegations 5, 6, and 8 of complaint
number 94-4244; and allegations 1 and 2 of complaint number 95-4002 for
failure to state a claim. The FAD also dismissed allegation 2 of complaint
number 94-4201, portions of allegation 6 of complaint number 94-4201,
and allegation 8 of complaint number 94-4244, on the ground that they were
preliminary steps to taking a personnel action, that is, the appellant's
termination. The decision also found that these same allegations were
inextricably intertwined with, and subsumed by, the appellant's removal
from agency employment, and could serve as evidence of alleged pretext
in a separate complaint challenging her removal (agency number 97-4025M).
The prior decision found that the agency improperly dismissed allegations
1 (assignments), 2 (inappropriate discussion of appellant's medical
condition), 3 (request for medical documentation), 4 (increased scrutiny
of job performance), and 5 (exclusion from CPA certification activities)
of complaint number 94-4146; allegations 1 (removal of personal items
from the appellant's work area), 5 (request for additional medical
information), and portions of 6 (in May and June 1994, isolating her from
her co-workers, scrutinizing her work more closely, communicating with her
in a threatening and unprofessional manner, and denial of official time)
of complaint number 94-4201; allegations 5 (restricting access to the
Personnel Office, vacancy announcements, personnel regulations and the
agency manual), 6 (Personnel Office employees refused to assist her),
and 8 (in June and July 1994, communicated with her in a threatening
and unprofessional manner) of complaint number 94-4244; and allegation 1
(on August 15, 1994, refused admission to the Personnel Office to submit
an application for reassignment) of complaint number 95-4002.<1>
In its request for reconsideration, the agency contends that
notwithstanding its partial dismissal of appellant's consolidated
complaints, it investigated the complaints in their entirety, and upon
appellant's request for a hearing, forwarded all allegations (including
those previously dismissed) to the Administrative Judge (AJ). The agency
asserts that the AJ thereupon dismissed certain claims, and others were
remanded to the agency, whereupon the agency dismissed certain additional
claims. Thus, according to the agency, various allegations remanded for
processing by the prior decision had, in the interim, been dismissed
either by the AJ or the agency. However, the request for reconsideration
did not contain the decisions and orders presumably issued by the AJ and
the agency to effectuate these dismissals. Accordingly, the Commission
is unable to review those decisions in light of the investigative record.
It is therefore necessary for the agency to refer all of the allegations
remanded by the prior decision to the AJ before whom the remainder of
the consolidated complaints are pending, for consideration in light
of the prior decision. Although the agency states that its request
for reconsideration is directed solely at those allegations dismissed
by the agency rather than by the AJ, it is in fact necessary that all
the remanded allegations be considered in light of the prior decision,
whether or not the AJ or the agency has previously dismissed them.
We recognize that the AJ and the agency had the benefit of the
investigative record in rendering any dismissal rulings, whereas
the Commission's prior decision was rendered on appeal from a
pre-investigation partial dismissal. On remand, the AJ may determine,
in light of both the prior decision and the investigative record, as
appropriate, whether the remanded claims are subject to dismissal or
appropriately retained in the case, and proceed accordingly.
In light of this disposition, we do not reach the legal arguments on the
merits raised in the agency's request for reconsideration. However,
we note that the request for reconsideration appears to argue that
only those allegations amounting to a "tangible employment action" may
constitute harassment. To the contrary, there is no such requirement
for the factual incidences comprising a hostile work environment claim,
as long as the allegations, as a whole, are pervasive or severe and
satisfy the other elements of the claim. The agency's reliance on the
discussion of "tangible employment action" in Burlington Industries,
Inc. v. Ellerth, 118 S. Ct. 2257 (1998), is misplaced. In Ellerth,
the court required that harassment by a supervisor culminate in a
"tangible employment action" in order to assign vicarious liability
with no available affirmative defense. See EEOC Enforcement Guidance
on Vicarious Employer Liability for Sexual Harassment by Supervisors,
�I (June 18, 1999) ("Enforcement Guidance"). The court did not hold,
as the agency here claims, that harassment is not actionable absent a
"tangible employment action."
Accordingly, after a review of appellant's request for reconsideration,
the previous decision, and the entire record, the Commission DENIES
the request but reconsiders the prior decision on its own motion.
The decision of the Commission in Appeal No. 01973205 (February 24, 1999)
remains the decision of the Commission, but is MODIFIED to require the
agency to refer all of the allegations remanded by the prior decision
to the Administrative Judge before whom appellant's accepted allegations
are pending, for proceedings consistent with this decision. There is no
further right of administrative appeal on the decision of the Commission
on this Request to Reconsider.
ORDER (E1092)
The agency is ORDERED to refer the remanded allegations to the
Administrative Judge before whom appellant's accepted allegations
are pending. The agency shall acknowledge to the appellant that it has
received the remanded allegations and referred them to the Administrative
Judge within thirty (30) calendar days of the date of this decision.
A copy of the agency's letter of acknowledgment to appellant and a copy of
the notice that transmits the remanded allegations to the Administrative
Judge 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.
RIGHT TO FILE A CIVIL ACTION (Q0993)
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 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. 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 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:
November 5, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The prior decision affirmed the FAD's dismissal of allegation 6 of
complaint number 94-4146 and allegation 2 of complaint number 95-4002.