01996573_r
05-22-2001
James R. Winner, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
James R. Winner v. Department of the Air Force
01996573
May 22, 2001
.
James R. Winner,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996573
Agency No. 9V1M99307
DECISION
Complainant filed an 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that he was the victim of discrimination based on religion,
national origin and age, complainant contacted the EEO office on May
11, 1999. Informal efforts to resolve his concerns were unsuccessful.
On June 29, 1999, complainant filed a formal complaint. Specifically,
complainant claimed that he was discriminated against regarding the
following matters:<1>
on May 7, 1999, complainant was threatened by a co-worker;
on May 7, 1999, complainant's supervisor intimidated and demeaned
complainant when he accused complainant of expressing his opinion to
other employees and told him to keep his opinions to himself;
on May 7, 1999, his supervisor took the side of a co-worker regarding
new technology;
on May 7, 1999, his supervisor told complainant that it was his
responsibility to test the item with new technology;
on May 7, 1999, his supervisor asked complainant to ignore technological
changes;
on May 7, 1999, complainant was not treated fairly in a meeting; and
on June 28, 1999, complainant was moved to a different organization
because of a request he made that he alleges was involuntary.
On July 30, 1999, the agency issued a decision dismissing claims (1)
through (6) for failure to state a claim. The agency determined that
complainant did not provide any evidence to suggest that he suffered
a personal loss or harm regarding a term, condition, or privilege of
his employment. The agency also dismissed claim (7) for failure to
raise the claim with an EEO Counselor and found that it is not like or
related to matters for which complainant sought EEO counseling.
On appeal, complainant reiterates that he is subjected to a hostile work
environment, citing numerous incidents of alleged agency improprieties.
Complainant alleges that these incidents represented years of continuous
harassment, intimidation, and humiliation. In response, the agency
urges that we affirm the final agency decision.
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 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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complianant 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).
A review of the record persuades the Commission that claims (1) - (6)
were improperly dismissed. A fair reading of the record indicates
that complainant's complaint and his statements on appeal, reflect
that he claimed that he was harassed by agency officials. By claiming
a pattern of harassment, complainant stated a cognizable claim under
the EEOC Regulations. See Cervantes v. United States Postal Service,
EEOC Request No. 05930303 (November 12, 1993).
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that an agency shall
dismiss a complaint which raises a matter that has not been brought
to the attention of an EEO Counselor, and is not like or related to a
matter on which the complainant has received counseling.
Regarding claim (7), the Commission finds that the agency improperly
dismissed this claim for not raising it with an EEO Counselor.
We determine that claim (7) is �like or related to� the other claims
complainant raised with the EEO Counselor. Additionally, it is apparent
that complainant raised claim (7) with the EEO Counselor. According to
the EEO Counselor's report, complainant requested immediate removal from
his supervisor because he created a hostile work environment for him.
By the date that complainant filed the instant complaint, the request
for the removal was effected.
Because the complainant has shown an injury or harm to a term, condition,
or privilege of employment, the agency's decision to dismiss claims (1) -
(6) for failure to state a claim and the decision to dismiss claim (7)
for failure to raise the issue to the attention of an EEO Counselor
is REVERSED. The complaint is REMANDED to the agency for further
processing 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.
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
May 22, 2001
__________________
Date
1The claims are herein identified as claims 1-7, for purposes of clarity,
although the agency has designated them differently in its FAD.