Joan E. Klar, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 31, 1999
01986809_r (E.E.O.C. Aug. 31, 1999)

01986809_r

08-31-1999

Joan E. Klar, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Joan E. Klar v. Department of the Treasury

01986864

August 31, 1999

Joan E. Klar, )

Appellant, )

)

v. ) Appeal Nos. 01986864

) 01990335

Lawrence H. Summers, ) Agency Nos. 98-4259

Secretary, ) 98-4280

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On September 15, 1998, and October 15, 1998, appellant filed timely

appeals with this Commission from final agency decisions (FADs) pertaining

to her complaints 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., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. �621 et seq. Pursuant to 29 C.F.R. �1614.606,

the Commission hereby consolidates appellant's complaints for decision

on appeal. In her complaints, appellant alleged that she was subjected

to discrimination on the bases of sex (female), marital status (married),

age (DOB 3/30/51), and in reprisal for prior EEO activity when:

On May 21, 1998, appellant was informed that an Employee Performance

File (EPF) of one of her employees was being returned to her for direct

submission to the North Texas District;

On May 21, 1998, appellant was informed by the District Director's

office that an employee's performance evaluation was delinquent; and

On November 12, 1997, appellant's manager denied appellant's request

to access e-mail while she was convalescing at home.

Appellant further alleged that the foregoing were incidents of continued

harassment which created a hostile work environment.

The agency dismissed allegations (1), (2), and (3) pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a), for failure to state a claim,

and dismissed marital status as a basis for appellant's complaint.

Specifically, the agency determined that appellant failed to show that she

suffered harm to the terms, conditions, or privileges of her employment

as a result of the incidents identified in allegations (1), (2), and

(3), and was, therefore, not aggrieved. The agency also determined

that because marital status was not a protected basis under the EEOC

regulations, dismissal was proper.

On appeal, appellant indicates that because her office has been denied the

opportunity to fill the clerical position of her secretary, the action

identified in allegation (1) forced appellant, personally, to take on

the clerical duties necessary to send the submissions to the North Texas

District. Additionally, appellant contends that the actions identified

in allegations (2) and (3) directly affected the terms, conditions,

or privileges of her employment because they contributed to an alleged

hostile work environment.

In response, the agency asserts that appellant failed to allege a

hostile work environment, and that her complaint represents "a pure sex

discrimination case" in which she suffered no "tangible employment action"

as defined by the Supreme Court in Burlington Industries, Inc. v. Ellerth,

524 U.S.742 (1998). Absent a "tangible employment action," the agency

argues that appellant is not aggrieved by the actions identified in

her complaint.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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).

EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and

class complaints of employment discrimination and retaliation prohibited

by Title VII (discrimination on the bases of race, color, religion,

sex and national origin), the ADEA (discrimination on the basis of

age when the aggrieved individual is at least forty years of age),

the Rehabilitation Act (discrimination on the basis of disability),

or the Equal Pay Act (sex-based wage discrimination) shall be processed

in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)

provides that no person shall be subject to retaliation for opposing any

practice made unlawful by Title VII of the Civil Rights Act (Title VII)

(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the

Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any

stage of administrative or judicial proceedings under these statutes.

As marital status is not a basis protected by the EEOC regulations, we

find that the agency's decision to dismiss it as a basis for appellant's

complaint was proper.

We find that the agency erred in dismissing allegation (3). Appellant

properly alleged that as a result of the incident described therein, she

suffered harm to the terms, conditions or privileges of her employment;

i.e., that she was not permitted the opportunity to access her e-mail

while convalescing at home. The agency's reliance on Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) is misplaced, as the

presence of a "tangible employment action" in that holding relates only

to the question about whether an employer can be held strictly liable

for the discriminatory actions of an employee, not the determination of

whether an allegation of discrimination states a claim. Based on the

foregoing, we find that dismissal of allegation (3) was improper.

We concur with the agency's determination that appellant was not

aggrieved by the incidents identified in allegations (1) and (2).

According to appellant, the agency intentionally returned an EPF so

that appellant, herself, would have to do the paperwork because her

office was denied the opportunity to fill the clerical position of

her secretary. We find, however, that any harm to appellant by having

to do the identified paperwork is speculative at best. Additionally,

appellant failed to show how she suffered harm to the terms, conditions

or privileges of her employment by merely being informed that an employee

evaluation was delinquent. Moreover, as there is no remedial relief

available for appellant on these claims, dismissal is proper pursuant

to 29 C.F.R. �1614.107(a). See Moreno v. Department of the Treasury,

EEOC Request No. 05940139 (October 28, 1994). Therefore, standing alone,

allegations (1) and (2) fail to state a claim.

However, contrary to the agency's position on appeal, appellant further

alleged that the incidents of alleged discrimination identified in

allegations (1) and (2) constituted harassment which created a hostile

work environment. 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 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).

However, it is well-settled that, unless the conduct is very severe,

a single incident or a group of isolated incidents will not be regarded

as creating a discriminatory work environment. See James v. Department

of Health and Human Services, EEOC Request No. 05940327 (September 20,

1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).

In the instant complaint, we find that appellant failed to show that she

suffered harm with respect to the terms, conditions or privileges of

her employment as a result of the incidents identified in allegations

(1) and (2). Therefore, standing alone, they fail to state a claim.

Additionally, even when viewed within the context of allegation (3)

and in a light most favorable to appellant, allegations (1) and (2)

are too isolated and insufficiently severe to establish a hostile work

environment. Consequently, we find that allegations (1) and (2) were

properly dismissed pursuant to 29 C.F.R. �1614.107(a), for failure to

state a claim.

Accordingly, the agency's decision to dismiss marital status as a basis

for appellant's complaint is AFFIRMED for the reasons set forth herein.

The agency's decision to dismiss allegations (1) and (2) is AFFIRMED.

The dismissal of allegation (3) is hereby REVERSED. Allegation (3) is

REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

August 31, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations