01983107
10-25-1999
Frank McSween, III, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Frank McSween, III v. Department of the Navy
01983107
October 25, 1999
Frank McSween, III, )
Appellant, )
) Appeal No. 01983107
v. ) Agency No. DON-98-00231-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegations of discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency improperly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
On December 23, 1997, appellant filed a formal complaint alleging
discrimination based on race (African American), sex (male), color
(Black), physical disability (sleep apnea), and reprisal (prior EEO
complaint) when:
(a) appellant was assigned tasks by his immediate supervisor (Supervisor
I) by electronic mail from July through September 1997, with unrealistic
time frames set and threats of adverse action to his performance appraisal
if tasks were not completed;
(b) appellant was assigned tasks by Supervisor I by memorandum dated
September 8, and 16, 1997, with unrealistic time frames set and threats of
adverse action to his performance appraisal if tasks were not completed;
(c) appellant was threatened by Supervisor I with adverse action to his
performance evaluation by e-mail on September 8, 1997;
(d) appellant met with his second line supervisor (Supervisor II) to
discuss the e-mail threats by Supervisor I and Supervisor II did not
state that he had informed [Supervisor I] to stop the threats;
(e) appellant was denied the command's standard word processing software,
MS Word, on his personal computer;
(f) appellant was unable to complete taskings because they were scanned
onto a disk and edited in MS Word and that software was not available
on his computer;
(g) on October 28, 1997, Supervisor I swung the door and slammed it in
[appellant's] face stating that he wanted to speak to Supervisor II
alone after meeting [appellant] outside the door; and
(h) on November 3, 1997, [appellant] was rated a level 3 close out rating
by Supervisor I for the period June 9, 1997, to November 3, 1997.
Appellant is a computer specialist in the agency's medical clinic.
In the Counselor's Report dated January 15, 1998, appellant alleges
harassment and discrimination in his workplace environment. He alleges
that his first and second line supervisors intentionally harassed him and
restricted his ability to perform his duties. Appellant alleges that the
supervisors set him up for failure and made him believe that his job was
threatened on a constant bases. The record contains copies of several
e-mail messages between appellant and Supervisor I in which Supervisor
I directs appellant to simultaneously complete numerous taskings, and
advises that appellant's performance evaluation will reflect whether he
succeeded in completing the tasks.
In the final agency decision (FAD), dated January 30, 1998, the agency
dismissed appellant's complaint for failure to state a claim per EEOC
regulation 29 C.F.R. �1614.107(a). The agency found that appellant was
not aggrieved in that he did not suffer any personal loss or harm with
respect to a term, condition, or privilege of employment. The agency
dismissed allegation (h) of the complaint per 29 C.F.R. �1614.107(e)
stating that close-out ratings are interim appraisals which do not serve
as the annual rating of record.
Appellant requested an extension of time from the Commission to procure
the services of an attorney to represent him both in his appeal and in
two other complaints filed against the agency. The Commission granted
appellant until May 8, 1998, to appeal. Appellant appealed on March
6, 1998.
ANALYSIS AND FINDINGS
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 as "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).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint that fails to state a claim under 29
C.F.R. �1614.103.
In Cobb v. Dept. of the Treasury, EEOC Request No. 05970077 (March
13, 1997), the Commission has recently reaffirmed what is required in
harassment cases in order to state a claim under the aforementioned
regulation. In conjunction with its discussion of existing precedent
in this area, the Commission advised that (1) the ultimate merit of the
allegations (whether they are true/whether discrimination has occurred)
may not be considered<1>; and (2) the complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant can prove no set of facts in support of the claim which would
entitle the complainant to relief. The Commission further instructed that
claims of harassment should be accepted where the complainant has made
factual allegations which, when considered together<2> and treated as
true, are sufficient to state a claim either of (1) disparate treatment
regarding hiring, termination, compensation or any other specific term,
condition, or privilege of employment; or (2) a hostile or abusive
work environment. Cobb, at p. 7. The Commission held that "a claim of
harassment is actionable only if, allegedly, the harassment to which the
complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of the complainant's employment .... [t]he 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." Cobb, at pp. 6-7.
While the Commission has held that "a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim,"
(Cobb, at p.5), in this case, appellant lists numerous instances in
which Supervisor I allegedly harassed him with multiple taskings,
references to appellant"s evaluation, and hostile behavior.
EEOC Regulation 29 C.F.R. �1614.107(e) provides that an agency shall
dismiss a complaint that alleges "that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory." The Section by Section Analysis that accompanied
issuance of 29 C.F.R. �1614 states in part:
We intend [1614.107(e)] to require dismissal of complaints that allege
discrimination in any preliminary steps that do not, without further
action, affect the person; for example progress reviews or improvement
periods that are not a part of any official file on the employee.
If the individual alleges, however, that the preliminary step was taken
for the purpose of harassing the individual for a prohibited reason,
the complaint cannot be dismissed under this section because it has
already affected the employee.
57 Fed. Reg. 12643 (April 10, 1992).
In Rodriguez-Soto v. Department of the Army, EEOC Request No. 05960646
(Oct. 8, 1998), appellant alleged the agency placed him on a Performance
Improvement Plan (PIP) and denied him meaningful assistance to improve
during the PIP as part of a pattern of discrimination based on national
origin. The Commission found, since appellant alleged in essence the
agency's actions were taken for the purpose of harassment, he had already
been affected by the agency's actions and stated a claim. See Noone
v. Central Intelligence Agency, EEOC request No. 05940422 (Jan. 23,
1995).
In the instant case, the Commission finds appellant alleges the
close-out rating was issued for the purpose of harassing him for a
prohibited reason, and, therefore, states a claim. Appellant alleges
Supervisor I harassed him with unreasonable deadlines, and threats that
failure to meet those deadlines would negatively affect his evaluation.
The low close-out rating, while an interim appraisal, supports appellant's
allegation that his written appraisal was threatened by Supervisor I as
part of a pattern of harassment
CONCLUSIONS
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision and REMAND to the
agency for further processing.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 herein.
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 (R0993)
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. 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.
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. 25, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 In Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996), the Commission stated, in dicta, that as long as the
appellant in that case had alleged that she was harassed because of
her sex, she stated a claim. The Cobb decision clarified that, by
this statement in Osborne, the Commission did not intend to overrule,
without discussion, its longstanding policy and practice of determining
whether a complainant's harassment allegations were legally sufficient to
state a claim. The Commission explained that in Osborne, the agency's
conclusion as to whether appellant's complaint met the definition
of sex-based harassment went to the ultimate truth or merits of her
allegation, rather than to whether her allegations stated a claim and
noted that the Commission has repeatedly reversed such agency dismissals
where they were based on the agency's view of the merits of the case
rather than on the legal sufficiency of the claim.
2 The Commission stated that, when considering whether a harassment
complaint states a hostile or abusive work environment claim, the decision
maker must consider all of the alleged harassing incidents and remarks.