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.