01990330_r
10-07-1999
Harry S. Baer, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Harry S. Baer, )
Appellant, )
)
v. ) Appeal No. 01990330
) Agency No. DON-98-63393-070
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On October 13, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on dated September 18,
1998, 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the bases of age
(date of birth March 6, 1925) and in reprisal for prior EEO activity when:
On July 1, 1998, the Director appointed appellant's former second level
supervisor (S) to be appellant's first level supervisor;
On July 2, 1998, S met with appellant for the first time as appellant's
first level supervisor, and criticized appellant's attendance at a
Microsoft Hyper Text Mark-Up Language Symposium on June 23 and 24, 1998;
On July 15, 1998, S and appellant's former first level supervisor met
with appellant to review appellant's position description (PD). During
the meeting, S refused to remove the �photographic coordinator� duties
from appellant's PD even though appellant has not performed these duties
since May 1997, and stated that appellant did not have enough work to do;
On July 15, 1998, S refused to increase appellant's travel time from
two percent to five percent, while other Writer-Editors are allowed to
travel more frequently; and
On July 21, 1998, S proposed to have the Management Programs
Division survey appellant's job to determine appellant's duties and
responsibilities.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency found that the changes in supervision were the result of a
reorganization of the entire office.
On appeal, appellant contends that the agency reorganized to remove
appellant from the protection of his former first level supervisor,
and to allow S, a responsible agency official in appellant's prior
complaint, to harass appellant by increasing appellant's work load,
imposing restrictive rules, and continuously questioning appellant's
work. Appellant argues that S frequently accused appellant of being
under-tasked, and has forced appellant to undergo two desk audits.
Appellant also asserts that the EEO officer involved in appellant's case
is �golfing buddies� with the responsible agency official.
In response, the agency notes that S was always in appellant's chain of
command, but was made appellant's direct supervisor by the reorganization.
Regarding allegation (2), the agency argues that appellant is taking
a conversation that resulted in no adverse action out of context
because appellant believes he was �put down.� The agency also asserts
that management has the right to assign work, and that undesirable
assignments do not give rise to discrimination or retaliation claims.
Regarding allegation (3), the agency contends that PD's are determined
by management, not their employees.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 22, 1994).
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 trier of fact 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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Feb. 27,
1997).
Regarding allegation (1), appellant failed to state a claim. Appellant
alleged that he was subjected to discrimination when a change was made in
his chain of supervision, i.e., a different official was assigned to be
appellant first level supervisor. The assignment of another employee
alone does not render appellant aggrieved. Therefore, the agency's
dismissal of allegation (1) was proper.
Much of the agency's argument for allegations (3) and (4) improperly
addresses the merits of the allegations, without a proper investigation
as required by the regulations. We find that the agency's articulated
reason for the action in dispute, i.e., that the agency's actions are
the product a reorganization, and that management may assign tasks and
PD's as they wish, goes to the merits of appellant's complaint, and is
irrelevant to the procedural issue of whether he has stated a justiciable
claim under Title VII. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (Aug. 15, 1991).
In allegations (3) and (4), appellant alleged that he was subjected to
discrimination when improper duties, i.e., duties he did not perform,
were not removed from his position description, and he was not allowed
more travel time. Clearly, both of these incidents affected a term,
condition, or privilege of appellant's employment, i.e., the accuracy
of his position description and his travel allowance. Accordingly,
the agency's dismissal of allegations (3) and (4) was improper.
In the present case, appellant alleged a pattern of harassment at the
hands of S. Although allegation (2) may not state a claim when standing
alone, appellant alleged that it is part of a pattern of harassment
that must be considered with appellant's other cognizable allegations.
See Cobb v. Department of the Treasury, supra. Instead of treating these
events as incidents of the claim of harassment, however, the agency looked
at them individually. Thus, we find that the agency acted improperly by
treating matters raised in appellant's complaint in a piecemeal manner.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a
complainant's allegations and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of). Consequently,
when allegation (2) is viewed in the context of appellant's complaint
of harassment, it states a claim and the agency's dismissal was improper.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges that
a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory. Allegation (5) concerns a
proposal to survey appellant's job, not any personnel action. Further,
conducting the survey alone does not render appellant aggrieved; appellant
has failed to state a claim even assuming that the survey actually has
been conducted. Therefore, the agency's dismissal of allegation (5)
was proper.
Regarding appellant's allegation of a conflict of interest, the agency
is reminded of its duty to avoid conflicts of interest, as well as the
appearance of such conflicts. See EEO MD 110 (1-1). If a complainant
is dissatisfied with the processing of his pending complaint, he
should be referred to the agency official responsible for the quality
of complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO MD 110 (4-8).
Appellant is advised that if he wishes to pursue, through the EEO
process, the additional reprisal allegations he raised for the first
time on appeal, i.e. desk audits, he shall initiate contact with an
EEO counselor within fifteen (15) days after he receives this decision.
The Commission advises the agency that if appellant seeks EEO counseling
regarding the new allegations within the above 15 day period, the date
appellant filed the appeal statement in which he raised these allegations
with the agency shall be deemed to be the date of the initial EEO contact,
unless he previously contacted a counselor regarding these matters,
in which case the earlier date would serve as the EEO counselor contact
date. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(Jan. 16, 1998).
CONCLUSION
Accordingly, the agency's dismissal of allegations (1) and (5) is
AFFIRMED. However, the agency's dismissal of allegations (2), (3),
and (4) is REVERSED, and allegations (2), (3), and (4) are REMANDED for
further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 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.
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 (T0993)
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 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. 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 (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:
October 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations