Ismail I. Shaishaa, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01973264 (E.E.O.C. Mar. 24, 2000)

01973264

03-24-2000

Ismail I. Shaishaa, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Ismail I. Shaishaa v. Department of the Army

01973264

March 24, 2000

Ismail I. Shaishaa, )

Complainant, )

) Appeal No. 01973264

v. ) Agency No. 09509F0240

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

)

DECISION

Ismail I. Shaishaa (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the bases of national origin (Egyptian) and reprisal

(prior EEO activity), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Senior Auditor, GS-511-11-5, at the agency's Internal Review Office

in New York, New York. Believing he was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a complaint

on September 8, 1995.<2> Therein, complainant alleged discrimination on

the bases of national origin (Egyptian) and reprisal (prior EEO activity)

at the hands of his immediate supervisor (hereinafter S1: Scotch-Irish,

Russian, Austrian, Polish; no prior EEO activity). Complainant alleged

that S1 discriminated against him when S1: (1) promised to provide

complainant with exceptional performance ratings for the past five years,

but refused to do so and instead provided fully successful appraisals

for two years; (2) imposed a very stressful and unhealthy atmosphere

in the office despite a previous commitment on October 24, 1995 to

change his attitude; (3) harassed complainant on an on-going basis,

including posting a note on the wall which read "Hit Head Here"; and

(4) took reprisal actions against complainant, including failing to

order complainant a new computer with the latest software even though he

was ordering one for the other auditor in the office (hereinafter CW:

national origin unspecified, but non-Egyptian; no prior EEO activity)

and himself and giving all the career advancement to CW and himself,

as opposed to complainant.

This complaint also included information about past behaviors of S1 and

information regarding EEO complaints and a Merit Systems Protection Board

(hereinafter MSPB) appeal filed by complainant in the past. On September

14, 1995, the agency informed complainant that it was rejecting Claim

Nos. 1 and 2 on the grounds that they each were the subject of previous

complaints. The agency rejected Claim No. 3 as untimely, noting that

the "Hit Head Here" incident occurred in June 1995. The agency accepted

Claim No. 4 for investigation. It informed complainant that he should

contact the agency if he believed that the issues of the complaint had

not been correctly identified.

Complainant contacted the agency by letter dated September 20, 1995,

to protest the rejection of Claim Nos. 1, 2 and 3. On September 26,

1995, the agency agreed to accept Claim No. 3: "Harassment by your

supervisor, regarding his placement of posters on his desk that you find

offensively placed there for your benefit"; along with Claim No. 4:

"Reprisal actions regarding the fact that you feel that you are the only

employee in your office not receiving a new computer." The agency again

indicated that unless complainant responded within five days, it would

conclude that the issues were properly identified. It appears from the

record that complainant did not contact the agency again. Neither of

the September 1995 letters rejecting certain of complainant's claims

included appeal rights to the EEOC.

At the conclusion of the investigation, complainant requested that the

agency issue a final agency decision.

The FAD did not address Claim Nos. 1 and 2, presumably relying on the

September 1995 rejection of those claims as stating the same claim

as two previous complaints. In terms of Claim Nos. 3 and 4, the FAD

concluded that complainant failed to establish a prima facie case of

national origin discrimination because he failed to establish that the

posting of a sign which read "Hit Head Here" was an adverse personnel

action affecting the terms, conditions or privileges of his employment.

The agency also found that complainant's late receipt of a new computer

in comparison to CW was not an adverse personnel action. The FAD went

on to conclude that complainant failed to establish that he was treated

less favorably than a similarly situated individual outside his protected

group. Specifically, the FAD concluded that complainant was not treated

less favorably than his coworkers due to the posting of the "Hit Head

Here" note because anyone in the office could have seen it. The FAD

also noted that CW was not similarly situated to complainant because he

outranked complainant in grade and had the worst computer in the office.

The FAD also concluded that complainant failed to establish a prima facie

case of reprisal discrimination when he failed to show he was subjected

to an adverse employment action and when he failed to show a causal nexus

between the issues of the instant complaint and his prior EEO activity.

The FAD went on to supply management's articulated non-discriminatory

reason for its actions. S1 testified that the note was posted facing

his desk and was only visible to complainant because their desks were

side-by-side. The note was intended as a reminder to S1, from himself,

that he could not always do something about upper management's actions

when he disagreed with them. S1 further testified that the budget only

allowed for one new computer to be ordered per fiscal year. Because CW

had more seniority than complainant and had the worst computer, he

received a computer in FY 94. S1 then ordered one for himself in FY 95

and one for complainant in FY 96.

Finally, the FAD concluded that complainant had offered no evidence or

corroborating testimony to confirm his claims that management's actions

were based on his national origin or prior EEO activity. Therefore,

the FAD found that no discrimination or retaliation had occurred.

CONTENTIONS OF APPEAL

Complainant makes numerous contentions on appeal. Several of

complainant's arguments concern the agency's failure to investigate the

issues surrounding Claim Nos. 1 and 2. Complainant notes that most of

the issues he presented did not receive proper review or investigation.

Complainant argues that he established a prima facie case "in all issues

raised". He also provides information about previous actions by S1 that

were the subject of prior complaints and/or grievances.

The agency offers no new contentions on appeal.

ANALYSIS AND FINDINGS

Turning first to Claim Nos. 1 and 2, the new regulations require an agency

to notify complainant in writing when it determines that some but not all

of the claims in a complaint should be dismissed. Complainant may not

appeal a partial dismissal until final action is taken by the agency on

the remainder of the complaint. See EEOC Regulation 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b)).

In the case at hand, the September 1995 letters dismiss Claim Nos. 1 and

2 for raising the same issues as raised in prior complaints. On appeal,

complainant contests this dismissal. After a thorough review of the

record, the Commission finds that the agency did not provide sufficient

evidence to support its dismissal. Commission regulations provide for

the dismissal of a complaint, or portion of a complaint, that states

the same claim that has been decided by the agency or the Commission.

See 29 C.F.R. � 1614.107(a)(1); see also Terhune v. United States

Postal Service, EEOC Request No. 05950907 (July 18, 1997). In order

to determine whether a formal complaint presents "identical matters"

as a prior complaint, three elements of the complaint are reviewed: (1)

the date of the most recent event; (2) the prohibited bases alleged; and

(3) the facts which resulted in the alleged discrimination. See Jordan

v. Department of the Treasury, EEOC Appeal No. 01964461 (June 10, 1997).

The agency did not provide evidence of these elements in the record.

Accordingly, the agency's implicit dismissal of Claim Nos. 1 and 2

was improper.

We next turn to Claim No. 3, in which complainant stated that S1 harassed

him on an on-going basis, specifically identifying an instance wherein

S1 put "a piece of yellow stick" on the wall which said "Hit Head Here".

Complainant felt that this was meant to harass him and to illustrate S1's

view that complainant could not prevent S1 from doing whatever he wanted.

We note that complainant cited several other incidents of harassment

in his complaint, though he also seemed to indicate that these other

incidents were reported in other complaints and/or grievances.

The agency found that complainant failed to establish a prima facie case

of national origin or reprisal discrimination in regard to this harassment

claim, because he failed to show that a term, condition, or privilege

of employment was affected. We find, however, that complainant clearly

intended to raise an overriding allegation of harassment. 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.

In the instant case, complainant contends that the posting of a note on

the wall reading "Hit Head Here" constituted harassment. While this

incident, if isolated, would not be enough to state a claim of harassment,

complainant describes several other "previous acts of harassment" in

his complaint. Moreover, it is possible that complainant intended to

include Claim Nos. 1, 2, and 4 in his overriding claim of harassment.

The fragmentation, or breaking up, of a complainant's legal claim

during EEO complaint processing has been a significant problem in the

federal sector. For complainants, fragmented processing can compromise

their ability to present an integrated and coherent claim of unlawful

employment practice for which there is a remedy under the federal

equal employment statutes. For agencies and the Commission, fragmented

processing substantially increases case inventories and workloads when

it results in the processing of related matters as separate complaints.

See EEOC Management Directive (MD) 110, as revised, November 9, 1999.

In the case at hand, the record indicates that complainant is essentially

alleging that he was the victim of ongoing harassment at the hands of S1.

He makes references to other complaints and claims of harassment he has

filed and alleges that the agency refuses to investigate his claims.

Although, as noted above, Claim No. 3 appears insufficient to constitute

a hostile work environment, it may, when consolidated with Claim Nos. 1,

2, 4, and other allegations of harassment pending at the agency, be

sufficient. The Commission finds, therefore, that complaint's claim

of national origin and reprisal harassment should be investigated and

adjudicated as one claim of harassment.

In order to rectify the problem and ensure efficient and equitable

processing of the complaint, we remand this matter to the agency so

that all pending claims of harassment�including Claim Nos. 1-4, may be

consolidated. Accordingly, we VACATE the agency's decision and REMAND

this matter in accordance with the following order and the applicable

EEOC regulations.

ORDER

The agency is ORDERED to consolidate for processing the claims of

national origin and retaliatory harassment pending before the agency,

which are like or related to the instant complaint.

Pursuant to EEOC Regulation 38,644, 37,661 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.606), the agency shall

complete its investigation within the earlier of 180 days after the

filing of the last complaint, or 360 days after the filing of the original

complaint. The agency shall make every effort to locate and determine the

status of complainant's complaints in the federal EEO process, if any,

and consolidate the complaints for hearing, if complainant requests,

or for an agency final decision.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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 (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:

3/24/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The complaint is not dated, but the Investigative Report and FAD refer

to September 8, 1995 as the filing date, with no protest from complainant.