01a05262
11-09-2000
Gertrude Sanders, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Gertrude Sanders v. Department of Veterans Affairs
01A05262
November 9, 2000
.
Gertrude Sanders,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05262
Agency No. 993054
DECISION
Gertrude Sanders (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 7, 2000 dismissing her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(black), sex (female) and age (64-67 at relevant times) when she was
subjected to ongoing harassment since 1996. In support of this claim,
complainant discussed several incidents with the EEO Counselor, including
suspensions, proposed terminations and two meetings she had with the
Director of the facility to discuss alternatives to termination.
The agency dismissed the complaint, after first framing it as three
separate claims: Claim A (harassment), B (three suspensions), and C (two
termination proposals). The agency noted that complainant failed to raise
claims B and C with the EEO Counselor and therefore dismissed both claims
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed claim B
on alternative grounds pursuant to 29 C.F.R. � 1614.107(a)(4), noting
that complainant had raised these suspensions in a negotiated grievance
procedure that permitted allegations of discrimination. The agency also
provided an additional justification for the dismissal of claim C, namely,
that complainant's termination was never carried out and thus the claim
was subject to dismissal pursuant to 29 C.F.R. � 1614.107(a)(5). Finally,
the agency noted that claim A failed to state a claim in that complainant
failed to allege that her working conditions were affected in a material
way by the meetings she described. In addition, the agency noted that
complainant failed to state a claim of harassment because the incidents
alleged are not sufficiently severe or pervasive, even if the proposed
terminations are considered in combination with the two meetings with
the Director.
On appeal, complainant reiterates that she was subjected to constant
harassment. She notes that she was placed on the midnight to 8:00 AM
shift with no other employees in the area in violation of agency policy.
She also contends that ever since one of the agency's Police and Security
Officers reported that complainant was sleeping on duty, the agency has
attempted to force her out of the workplace.
The agency notes that it did not receive a statement on appeal and
requests that if complainant provided the Commission with a statement,
it be disregarded. The agency contends that it properly dismissed the
complaint, reiterating the reasons offered in the FAD. The agency then
argues that dismissal of the harassment claim was appropriate because,
in addition to the reasons set forth in the FAD, the claim involves
the agency's failure to offer complainant a satisfactory alternative
to termination. The agency asserts that it is not obligated to offer
complainant a settlement option and that its offer of terms may not
serve as the basis of a cognizable claim.
FINDINGS AND ANALYSIS
Initially, we note that the agency improperly construed the complaint.
While complainant did check off the boxes labeled �harassment,�
�suspension,� and �removal� on the formal complaint form, a review of
the EEO Counselor's report makes clear that complainant intended to
claim ongoing harassment since 1996. Complainant alleged that this
harassment included suspensions, proposed removals and meetings to
discuss alternatives to termination.
We find that the suspensions described by complainant, along with the
first proposed termination,<2> were first raised in a negotiated grievance
procedure that permits allegations of discrimination. Complainant may
not now use these same incidents to support her harassment claim.
See 29 C.F.R. � 1614.107(4).
We now turn to the remaining incidents: the second termination proposal<3>
and the two meetings to discuss alternatives to termination. In Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
The Court explained that an "objectively hostile or abusive work
environment" is created when "a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such.� Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of
facts in support of the claim which would entitle the complainant to
relief. The agency must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state a
claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). However, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents will
not be regarded as creating a discriminatory work environment. See James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994).
After a careful review of the record and considering the incidents in the
light most favorable to complainant, we find that the May 1999 proposed
termination and the subsequent meetings are most appropriately viewed as
a group of isolated incidents. Accordingly, we find that complainant
failed to state a claim of harassment. The agency's dismissal of the
complaint is therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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, Director
Office of Federal Operations
November 9, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 It is not entirely clear when this termination was proposed. Although
the formal complaint form lists May 9, 1998 as the date of the first
proposed removal, the Counselor's Report indicates that this proposed
termination was issued in April 1997. The agency found no administrative
record of a proposed termination in May 1998 and complainant provided no
evidence to suggest that the termination proposal was issued in May 1998.
We assume, therefore, that the April 1997 proposed termination is one
of the two proposed terminations described by complainant as part of a
pattern of harassment.
3 Although the formal complaint form lists June 1999 as the date of the
second proposed termination, the record reveals that complainant was not
issued a proposed termination letter in June 1999. Rather, according
to the agency, in August 1998, the Chief of Nursing saw complainant
sleeping while on-duty and proposed her removal. The Director believed
that complainant should be offered alternatives to termination and kept
the letter of proposed removal on his desk. In May 1999, the Director
held a meeting with complainant to discuss alternatives to termination.
The agency noted that the proposed removal letter had not been issued as
of May 1999, although one witness noted that the first May 1999 meeting
was called to issue the termination proposal. We assume for the purposes
of this decision that the second proposed termination was issued in May
1999.