01a01277
06-09-2000
James P. Popalarski, )
Complainant, )
)
v. ) Appeal No. 01A01277
) Agency No. 00-2033
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On November 24, 1999, complainant filed a timely appeal with this
Commission from an agency decision pertaining to his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The agency characterized complainant's complaint as alleging that he
was discriminated against in reprisal for prior EEO activity as he was
harassed and subjected to a hostile work environment when the Audit
Manager issued him a slanderous and defamatory email concerning a �GPRA�
class on August 12, 1999.
Pursuant to EEOC Regulations, the agency dismissed complainant's claim
for failure to state a claim. Specifically, the agency determined that
complainant was not aggrieved because he did not suffer a personal loss
or harm with respect to a term, condition or privilege of employment,
and that the email complainant received was not sufficiently severe
or pervasive to create a hostile work environment for a reasonable
person.
In his complaint, complainant asserts that �the defaming email...[was]
one of many incidents of disparate treatment and reprisal actions taken.�
Complainant specifically asserts that during a previous assignment to
the Audit manager his requests for training were never approved, he was
required to travel out of town without adequate notice, his performance
appraisal was downgraded, his leave requests were not approved, he was
required to take sick leave instead of annual leave, and that subsequent
to the email in August 1999, he was sent further condescending messages.
On appeal, complainant also asserts that because the August 12, 1999 email
was forwarded to management, with whom he has now lost credibility, the
Audit manager has �set the stage� to again lower his performance rating.
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.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). In determining whether a harassment complaint states a
claim, the Commission has repeatedly examined whether a complainant's
harassment allegations, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim. Id.
Additionally, 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); See Cobb, supra.
In his complaint and on appeal, complainant alleged a series of events
occurring during the periods he was assigned to a named supervisor.
Specifically, complainant alleged that he was subjected to discrimination
and harassment which created a hostile work environment. Instead of
treating all of these events as incidents of the claim of harassment,
however, the agency looked only at one incident concerning a defamatory
email. Thus, the Commission finds that the agency improperly treated
complainant's complaint in a piecemeal fashion, when a fair reading of the
record as a whole, including his complaint, reveals that complainant is
alleging a pattern of ongoing harassment and a hostile work environment.
See Drake v. Department of the Air Force, EEOC Request No. 05970689
(March 29, 1999); Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). Consequently, when complainant's claims
are viewed together in the context of his complaint of harassment, they
state a claim and the agency's dismissal of the complaint for failure
to state a claim was improper.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The case is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
June 9, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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.