Geraldine Woody, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a03344 (E.E.O.C. Jul. 19, 2000)

01a03344

07-19-2000

Geraldine Woody, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Denise M. Decker v. Office of Personnel Management

05981117

07-19-00

.

Geraldine Woody,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A03344

Agency No. 98-1331

Hearing No. 100-99-8257X

DECISION

Complainant filed an appeal with this Commission from a final order of

the agency 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.<1> The final order was dated February 22, 2000,

and received on March 11, 2000. The appeal was postmarked March 30, 2000.

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 she failed to state a claim.

Complainant filed a complaint alleging harassment because of her race

(Black) when:

1. Management issued her a Secretary Review, dated May 6, 1998, with

a rating of �Minimally Successful� in three of her job elements and a

rating of �Unacceptable� in two of her job elements;

2. Management issued her a Secretary Review - Element Review, dated May

15, 1998, with a rating of �Minimally Successful� in the element �Work

Flow Control� under aspect A - Workload Management; and

3. Management issued her a counseling memorandum, dated October 16,

1997, addressing her �habitual tardiness� during her tour of duty.

Following an investigation, she was provided a copy of the investigative

file and notified of her right to request a hearing before an EEOC

Administrative Judge (AJ). Complainant requested a hearing, but

the AJ found that she failed to state a justiciable claim. The AJ,

finding that complainant did not suffer any harm affecting a term,

condition, or privilege of her employment, dismissed her complaint

pursuant to 64 Fed. Reg. 37,644, 37,657 (1999)(to be codified as 29

C.F.R. � 1614.109 (b)). The agency's final order, dated February 22,

2000, fully implemented the decision of the Administrative Judge.

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).

We find that both the AJ and the agency erred in finding that complainant

failed to state a claim.

These matters, if true, would have affected a term, condition, or

privilege of her employment. Terms, conditions, or privileges of

employment include, inter alia, promotion, demotion, discipline,

reasonable accommodation, appraisals, awards, training, benefits,

assignments, overtime, leave, tours of duty, etc. A complaint which

alleges unlawful disparate treatment regarding a specific term, condition,

or privilege of employment should not be dismissed for failure to state

a claim. See, e.g., Miller v. Health and Human Services, EEOC Request

No. 05950577 (April 4, 1996) (intense scrutiny of work products);

and Brown v. Treasury, EEOC Request No. 05950415 (December 14, 1995)

(type of assignments); Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997)(harassment).<2>

Accordingly, the agency's final order dismissing the complaint is

REVERSED.

ORDER

The above complaint is remanded to the EEOC's Washington Field Office

for scheduling of a hearing in an expeditious manner. The agency is

directed to submit a copy of the complaint file to the Hearings Unit of

the Washington Field Office within fifteen (15) calendar days of the

date this decision becomes final. The agency shall provide written

notification to the Compliance Officer at the address set forth below

that the complaint file has been transmitted to the Hearings Unit.

Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

_07-19-00_____________________________

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.

2The Commission has repeatedly found that a few isolated incidents of

alleged harassment usually are not sufficient to support a harassment

claim. See Phillips v. Department of Veterans Affairs, EEOC Request

No. 05960030 (July 12, 1996); Cobb, supra.