Hortense Neu, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 3, 2010
0120100873 (E.E.O.C. Jun. 3, 2010)

0120100873

06-03-2010

Hortense Neu, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Hortense Neu,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120100873

Agency No. ARHQMSDDC09JUL03567

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 17, 2009, 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.

Complainant alleged that she was subjected to discrimination on the

bases of race/color (black) and sex (female) when she was subjected

to a hostile work environment because of comments and intimidation by

co-worker 1 (Caucasian).1

In her complaint and e-mails she submitted to the EEO counselor,

complainant provided examples of the alleged actions of co-worker 1.

Complainant related that from March to April 2009, while working at the

wharf, she overheard co-worker 1 refer to a female contractor longshoreman

as a "big black girl," and once when this longshoreman had difficulty with

a railcar say "that is what she gets for doing a man's job." Complainant

wrote that co-worker 1 repeatedly harassed the female longshoreman.

Complainant indicated that on June 29, 2009, when co-worker 2 (black)

commented on co-worker 1's red and peeling skin, she heard him respond,

"I'm trying to get to your color."2 In an e-mail co-worker 2 confirmed

that co-worker 1 always referred to the female longshoreman as "black

gal."

In an e-mail co-worker 2 also wrote that co-worker 1 used great

emphasis when using the word "black," as if he hated to utilize the word.

In another e-mail, he indicated that he talked to co-worker 1 on June 30,

2009, about his past and present racial remarks, and co-worker 1 said

that he thought the word "colored" was acceptable until he was employed

with the Department of Corrections in his home state and his use of the

term created an uproar with the inmates. In an apparent reference to

this conversation, co-worker 2 e-mailed that later that day co-worker

1 told co-worker 3 (white) "we better not go down that road."

In her complaint, complainant also wrote that on July 8, 2009, co-worker

3 witnessed co-worker 1 call black longshoreman "monkeys," and after they

figured out some procedures commented, "give the monkeys some bananas,

they finally got it right." She wrote that co-worker 1 has communicated

threats. In her complaint, complainant wrote that throughout his tenure,

co-worker 1 used excessive profanity, had violent outbursts, and she

was afraid to be around him.

The agency dismissed the complaint on the ground that complainant made

a prior election to proceed under the negotiated grievance procedure,

and noted a grievance decision made on July 7, 2009.

On appeal, complainant contends that she did not make a decision to

proceed under the negotiated grievance procedure, and does not wish to

do so. She also submits a statement that she wrote on August 19, 2009,

which gives more details on her harassment claim. While the statement

is not in the record the agency submitted, the counselor's report, which

contains only cryptic narrative, refers to an attachment.3 Complainant

wrote that on breaks at the lunch table, co-worker 1 has referred to

black men several times as "colored boys" or "big black boys." She wrote

that co-worker 1 often referred to the female longshoreman as "that

big black gal." She wrote that after co-worker 2 talked to co-worker

1 about his language,4 co-worker 3 told her that co-worker 1 later

expressed anger about this and yelled racial epithets. According to

complainant, co-worker 3 told her that co-worker 1 said they [blacks]

use the n-word among themselves, so he did not know why he could not.

Complaint wrote co-worker 1 told co-worker 3 that he was forced to resign

from his job as a state correctional officer because inmates were in an

uproar over him addressing them as colored. According to complainant,

co-worker 3 told her that co-worker 1 proceeded to other worksites

and asked white workers to be on the lookout for how blacks talked,

to see if they called each other by the n-word or used other slang,

and report back to him. Complainant contended that she was told by

co-worker 3 that he previously made a written report against co-worker

1 for yelling racial slurs, and co-worker 1 reacted by saying he would

cut co-worker 3's face so bad that he would leave a scar, so that every

time he looked in the mirror he would remember who put the scar there.

Complainant wrote that co-worker 2 said co-worker 1 made another violent

threat in reference to co-worker 3's report, which complainant recounted.

In opposition to the appeal, the agency argues that its final decision

should be affirmed. It also argues that the complaint fails to state a

claim. The agency characterizes the complaint as complainant overhearing

co-worker 1, in reference to a sunburn, telling a black co-worker that

he was trying to get to his color, overhearing co-worker 1 tell a female

longshoreman who was having difficulty working in a railcar that is what

she gets for doing a man's job, hearing second hand that co-worker 1 made

derogatory remarks toward black longshoreman, and believing co-worker

1 had a history of racial discrimination at previous jobs.

EEOC Regulation 29 C.F.R. �1614.301 provides that where a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by

a collective bargaining agreement (CBA) that permits allegations of

discrimination to be raised in the negotiated grievance procedure, an

election must be made to proceed under either the negotiated grievance

procedure or the EEO complaint procedure (part 1614). The regulation

provides that the election is indicated by the filing of a written

complaint or timely grievance, whichever is done first. It also provides

that an aggrieved employee who files a grievance with an agency whose

negotiated agreement permits the acceptance of grievances which allege

discrimination may not thereafter file a complaint on the same matter

under part 1614 irrespective of whether the agency has informed the

individual of the need to elect or whether the grievance has raised an

issue of discrimination.

As an employee of the Army complainant is employed by an agency subject

to 5 U.S.C. 7121(d). However, the record does not contain the grievance,

grievance decision, and the CBA. Because of this lack of documentation to

support the agency's dismissal, we reverse the dismissal of the complaint

on the ground that complainant filed a grievance first.

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 (March 13,

1997).

Complainant's complaint states a viable claim of harassment. While she

was not present when some of the alleged racial incidents occurred,

complainant was present for a number of incidents, some of which she

detailed in her August 19, 2009 statement. All of this, in combination

with the allegations that co-worker 1 acted in an intimidating and

frightening matter when confronted about engaging in racial incidents,

and was otherwise intimidating, is sufficient to state a claim of

discriminatory harassment.

The agency's dismissal decision is reversed and the complaint is remanded

in accordance with the following Order.

ORDER

The agency is ordered to process the claim that she was discriminated

against based on her race/color (black) and sex (female) when she was

subjected to a hostile work environment because of the comments and

intimidation by co-worker 1 (Caucasian), in accordance with 29 C.F.R. �

1614.108.5 The agency shall acknowledge to the complainant that it has

received the remanded claims within thirty (30) calendar days of the date

this decision becomes final. The agency shall issue to complainant a

copy of the investigative file and also shall notify complainant 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 complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant 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 (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

June 3, 2010

__________________

Date

1 The agency's final decision characterized the claim as complainant

alleging on July 7, 2009, that she was subjected to a hostile work

environment due "to racial comment" made by a co-worker. Our definition,

as set forth this Commission decision, more accurately captures the

complaint.

2 Complainant wrote in her complaint this incident occurred on July 7,

2009, but a June 30, 2009, e-mail by co-worker 2 indicates it occurred

on June 29, 2009.

3 The final counseling interview was on October 8, 2009.

4 Complainant wrote this occurred on July 8, 2009, but an e-mail by

co-worker 2 suggests this occurred on June 30, 2009.

5 Complainant's complaint does not list all the incidents of alleged

harassment. Some examples are referenced in e-mails by co-worker 2 and

an August 19, 2009, statement by complainant.

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0120100873

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120100873