Jahn W. Lind, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionDec 14, 2000
01993432 (E.E.O.C. Dec. 14, 2000)

01993432

12-14-2000

Jahn W. Lind, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Jahn W. Lind v. Navy

01993432

December 14, 2000

.

Jahn W. Lind,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

Agency.

Appeal No. 01993432

Agency No. DON 99-65888-045

DECISION

Jahn W. Lind (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated March 1, 1999, dismissing

his 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.<1> The appeal is accepted pursuant to 29

C.F.R. � 1614.405. In his complaint, complainant alleged that he was

subjected to discrimination on the bases of race (Caucasian), color

(white), and reprisal (prior EEO activity) when a supervisor refused to

act on numerous complaints of harassment by complainant and his co-workers

about another co-worker in his work area; his supervisor threatened

him during a documented discussion with a union representative present;

and his supervisor gave the co-worker (the alleged harasser) a letter

signed by complainant and other co-workers addressed to the commanding

officer, resulting in the possibility of reprisal against complainant

by the co-worker.

The FAD dismissed the complaint for failure to state a claim.

Specifically, the agency concluded that complainant did not suffer a

loss with respect to a term, condition, or privilege of employment.

On appeal, complainant argues that the management in his division

chose to ignore the fact that the alleged harasser, a Hispanic male,

had been harassing and threatening a large number of co-workers over a

period of at least 1 and � years. Complainant further points out that

19 out of 20 people this person chose to harass were white, when only

approximately 25 percent of the work force in the building were white.

Complainant finally emphasizes that his supervisor threatened him the day

after he sent a complaining letter, dated June 5, 1998, to the commanding

officer co-signed by 10 other people, who had been harassed or threatened.

His supervisor also allegedly gave a copy of the letter to the harasser.

Finally, complainant asserts that he has been harmed, pointing out that

now he has a sleep disorder and sometimes is too depressed to come to

work.

The agency generally responds that complainant has failed to show harm

with respect to a term, condition, or privilege of his employment.

The agency asserts that action was taken when the situation was brought

to management's attention. Thus, the alleged harasser was temporarily

detailed to another location, and has now been permanently reassigned.

With respect to complainant's supervisor threatening him and showing the

letter to the alleged harasser, the agency argues that appellant has not

shown how he was harmed by the action. It emphasizes that no concrete

action occurred as a result of the discussion. In any event, it is argued

that the situation does not rise to the level of harassment or creating

a hostile work environment. Finally, the agency argues that all of the

allegations are moot, since the co-worker has been permanently reassigned,

and there is no expectation that the alleged harassment will reoccur.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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 21, 1994).

However, in determining whether a harassment complaint states a claim in

cases where a complainant had not alleged disparate treatment regarding

a specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment claims,

when considered together and assumed to be true, were sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999).

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.

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Moreover, the Commission has repeatedly found that

remarks or comments unaccompanied by a concrete agency action usually are

not a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. See Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No. 05940695 (February 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,

1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,

the trier of fact must consider all of the circumstances, including the

following: the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's

work performance. Harris, 510 U.S. at 23.

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.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

The Commission finds that the agency erred in dismissing the allegation

of harassment, in the nature of hostile environment, for failure to state

a claim. The complaint points to inappropriate language and conduct by

the harasser and submits that the harasser's behavior was �common and

consistent.� The complaining letter, co-signed by ten other people,

dated June 5, 1998, asserts that the harasser had been threatening and

intimidating employees during work hours, involving physical threats,

challenges, and verbal abuse. It reiterates that the harassment had

been going on for a year and a half for most of the signers. It also

asserts that some people declined to sign the letter because of fear.

The EEO Counselor's report indicates that complainant claimed to have

endured the hostile work environment over the last two years, and,

as a result, had been under the doctor's care and takes medication to

sleep at night. The appeal reiterates that the harassment had gone on

for at least a year and a half. In sum, it does not appear beyond doubt

that the complainant cannot prove a set of facts in support of the claim

which would entitle the complainant to relief.

With regard to reprisal discrimination, the Commission has stated that:

The anti-reprisal provision of Title VII protects those who participate

in the EEO process and also those who oppose discriminatory employment

practices. Participation occurs when an employee has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding or hearing. Participation also occurs when an employee files

a labor grievance, if the employee raised issues of unlawful employment

discrimination in the grievance. . . . A variety of activities has been

found to constitute opposition . . . . Because the enforcement of Title

VII depends on the willingness of employees to oppose unlawful employment

practices or policies, courts have interpreted section 704(a) of Title

VII as intending to provide �exceptionally broad protection to those

who oppose such practices'. . . ."

Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784

(February 21, 1992) (citations omitted).

In addition, the Commission has issued policy guidance evaluating

retaliation claims in the EEOC Compliance Manual, Volume I, Retaliation,

�8 ( May 20, 1998). There, it is pointed out that the retaliation

provisions prohibit any discrimination that is reasonably likely to deter

a complainant or others from engaging in protected activity. Id. at 8-14

through 8-15. The retaliation provisions do not restrict the actions

that can be challenged to those that affect the terms and conditions

of employment. Id. at 8-15. Accordingly, a violation will be found

if an employer retaliates against a worker for engaging in protected

activity through threats, harassment in or out of the workplace, or

any other adverse treatment that is reasonably likely to deter protected

activity by that individual or other employees. Id. at 8-15 through 8-16.

The guidance goes on to suggest that the degree of harm suffered by the

individual goes to the issue of damages, not liability. Id. at 8-14,

citing Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).

On appeal, complainant alleges he was threatened by his supervisor the

day after the complaining letter was sent to the commanding officer,

and that the supervisor gave a copy of the June 5, 1998, letter to

the harasser. The complaint indicates that the supervisor threatened

inter alia to �write [him] up� for getting signatures on the letter by

the other people, who had been allegedly harassed.

As discussed above, failure to show harm with respect to a term,

condition, or privilege of employment is not necessarily disqualifying

for purposes of a retaliation claim. We also reiterate that it does

not appear beyond doubt that complainant cannot prove a set of facts in

support of the retaliation claims which would entitle the complainant

to relief. Accordingly, we find that the agency erred in dismissing

complainant's allegations for failure to state a claim.

In addressing the agency's position that the complaint is moot,

the regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for

the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant's complaint are

moot, the factfinder must ascertain whether (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo

v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for

a determination of the rights of the parties is presented. While the

agency argues that the alleged harasser has been permanently reassigned,

it in no way addressed whether and how the reassignment �irrevocably

eradicated the effects of the alleged discrimination� which complainant

asserts has taken place over at least the last year and one half to

two years. In any case, we doubt that the agency could satisfactorily

address the matter. Accordingly, we conclude that the matters raised

in the complaint are not moot.

Upon review, the Commission finds that complainant's complaint

was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Accordingly, the agency's final decision dismissing complainant's

complaint for failure to state a claim is REVERSED. The complaint is

hereby REMANDED for further processing consistent with this decision

and in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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

(R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 14, 2000

__________________

Date

1On 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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.