Inez C. Jordan, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01971015 (E.E.O.C. Sep. 3, 1999)

01971015

09-03-1999

Inez C. Jordan, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Inez C. Jordan v. Department of the Treasury

01971015

September 3, 1999

Inez C. Jordan, )

Appellant, )

) Appeal No. 01971015

v. ) Agency No. 961311

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) concerning her allegation that the agency violated

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 presented herein is whether the agency properly dismissed

appellant's complaint for failure to state a claim.

BACKGROUND

Appellant filed a formal complaint in September 1996 alleging that

she had been subjected to a hostile work environment based on her race

(Black) and in retaliation for prior EEO activity. The primary example

cited by appellant occurred on April 2, 1996, when her Team Leader (the

Responsible Official, RO) referred to a comment made by appellant as a

"smart *** remark." Appellant also alleged that, during the year prior

to that incident, the RO made inappropriate racial remarks and snide

comments about Black female employees, denigrated her and other team

members to field personnel, and made comments concerning appellant's

use of the EEO process.

In its final decision (FAD), the agency dismissed appellant's

complaint for failure to state a claim. Specifically, the FAD found

that appellant's allegations, when considered in their entirety, were

not sufficient to state a claim of harassment. In so concluding, the

agency found, in particular, that the actions challenged by appellant

were properly viewed as isolated incidents rather than a pattern of

pervasive harassment.

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 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 (Apr. 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 �1614.103.

In cases where an individual has alleged harassment, the Commission has

held that the allegation should be accepted when the individual has made

factual allegations which, when considered together and taken as true,

are sufficient to state a claim of a hostile work environment. Riden

v. Department of the Treasury, EEOC Request No. 05970314 (October 2,

1998). The complaint should not be dismissed for failure to state a

claim unless it appears beyond a doubt that the individual can prove

no set of facts in support of the claim that would entitle her to

relief. Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997).

In this case, the Commission disagrees with the FAD and finds that

appellant has set forth sufficient allegations to potentially sustain a

claim of harassment. The Commission is cognizant that appellant, as of

yet, has not offered specific examples in support of these allegations.

As noted, however, the issue at this juncture is not whether appellant

has met her burden, but, rather, whether it appears beyond doubt that

she will be unable to meet that burden. To the extent the agency has

not made such a showing, we find appellant's complaint should be remanded

for further processing.

CONCLUSION

It is the decision of the Commission to REVERSE the FAD and REMAND

appellant's complaint in accordance with this decision and the applicable

regulations.

ORDER

The agency is ORDERED to process appellant's complaint in accordance with

29 C.F.R. Section 1614.108. The agency shall acknowledge to appellant

that it has received the 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 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 (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 re-quest 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. �l6l4.604(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:

09-03-99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations