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