James C. Smith, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 11, 2000
01A04103 (E.E.O.C. Oct. 11, 2000)

01A04103

10-11-2000

James C. Smith, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


James C. Smith v. U.S. Air Force

01A04103

October 11, 2000

.

James C. Smith,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A04103

Agency No. AL900000575

DECISION

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

decision dated May 2, 2000, dismissing his complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>

In his complaint, complainant claims that he was subjected to sexual

harassment and reprisal. Complainant, a supervisor, contends that

in 1993, a male subordinate filed an EEO complaint claiming that

complainant had subjected him to sexual harassment. Complainant stated

that he was exonerated with a finding that no sexual harassment occurred

and some years later, this former subordinate was again placed under

complainant's supervision. Complainant claimed that the subordinate's

work performance was poor and that he resisted complainant's attempts

to address the problems; that, instead, the subordinate began to spread

rumors that complainant made homosexual advances toward him and that

the prior EEO complaint was settled in a mediation which resulted in an

agreement that complainant not work near him. Complainant stated that he

brought the situation to the attention of his supervisor; and asked that

he take action to stop the subordinate from spreading these false rumors.

Complainant claimed that the supervisor not only refused to do so, but

that he retaliated against him for reporting the harassment by making

disparaging comments about complainant to other workers and by threatening

to discipline complainant for trying to address the situation himself.

Complainant claimed, moreover, that the supervisor unfairly made him

and the subordinate sign an agreement to stay away from each other for

one year.

The agency dismissed the complaint for failure to state a claim, finding

that complainant was not aggrieved, and that he had failed to state an

actionable claim of harassment.

On appeal, complainant argues that the supervisor's failure to address

these rumors created the impression that the rumors were true, resulting

in a hostile working environment. Complainant argues that the rumors

created suspicion and hostility, and that he was isolated and ostracized

by fellow workers. Complainant argues that accusations of improper

homosexual conduct are particularly difficult and uncomfortable in

the military environment in which he works. Complainant argues that

additional evidence of adverse working conditions are reflected in the

supervisor's threat of discipline regarding his attempt to clear his name,

and in the requirement that he sign an agreement to stay away from the

subordinate for one year. Complainant indicates that the supervisor, and

other management officials, were fully aware that the prior EEO complaint

was without merit, and that it had not been settled in a mediation.

In response, the agency argues that the supervisor's inaction regarding

the rumors had no effect on complainant's working conditions.

The agency contends that while complainant may have suffered some

occasional embarrassment, he was not aggrieved in a term or condition

of his employment. Moreover, the agency argues that the rumors only

caused complainant a problem on a few occasions, and did not rise to

the level of an actionable sexual harassment claim.

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).

In Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the Supreme

Court found that harassment is actionable, even absent a claim that

an agency's action harmed complainant in a specific term, condition

or privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating a

hostile work environment, and also that the conduct is sufficiently severe

or pervasive as 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).

In this case, we find that complainant has stated an actionable

claim of harassment, and that the agency's dismissal was improper.

The subordinate's purported conduct in spreading false rumors to

complainant's co-workers regarding the disposition of the prior EEO

sexual harassment complaint, and statements about complainant engaging

in improper homosexual activity, render complainant aggrieved.

Moreover, we find that the supervisor's purported failure to address

the rumors after complainant reported them as sexual harassment, his

proposal to discipline complainant for taking direct measures to stop

the rumors, and his requiring complainant to sign a statement agreeing

to refrain from contacting the subordinate for one year constitutes a

claim of retaliatory harassment. The Commission's policy on retaliation

prohibits any adverse treatment that is based on a retaliatory motive

and is reasonably likely to deter the charging party or others from

engaging in a protected activity. See EEOC Compliance Manual Section

8, �Retaliation� No.915.003 at pp. 8-13 (May 20, 1998). Accordingly,

we REVERSE the agency's dismissal of the instant complaint, and REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

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.

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

October 11, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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.