01a03656
07-27-2000
Joann Cannizzaro, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joann Cannizzaro v. Department of Veterans Affairs
01A03656
July 27, 2000
.
Joann Cannizzaro,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03656
Agency No. 200H-1484
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dismissing her 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> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
in which she alleged that she was subjected to retaliatory harassment by
an agency official because of several EEO complaints she had previously
filed against his supervisor. Specifically, complainant claimed that
this supervisor directed the official to pressure her and threatened
to discipline her if she refused to accept a position in a different
section of the medical center.
In its decision, the agency dismissed the complainant for failure to state
a claim, noting that complainant had not, in fact, been disciplined, and
that she was not otherwise aggrieved by the alleged action. Additionally,
the agency found that complainant failed to state an actionable claim
of harassment noting that there was �no indication� that the incident
in the complaint was anything but a single �isolated� occurrence, and
as such, it was not sufficiently severe to rise to the level of a claim
of harassment based on a hostile working environment.
On appeal, complainant argues that the agency deliberately ignored all
of the background evidence of harassment she had provided during EEO
counseling, and mis-characterized her complaint has consisting of only a
single incident in order to dismiss it. In response, the agency argues
that it is bound only to act on what is alleged in the complaint itself,
and that it would be inappropriate to take into consideration additional
claims in the EEO counselor's report when rendering its decision.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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).
However, 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 that it was 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).
Reference to the EEO Counselor's report reflects that complainant is
claiming that the position to which the agency official was attempting
to have her transferred was a full time position for which she was
not qualified. She further indicates that this was being done in a
hostile manner, with the knowledge on the part of the named official that
acceptance of the position would have been very detrimental to her,
possibly resulting in her resignation. Moreover, the EEO Counselor's
report reflects that complainant claims that both the named official, as
well as his supervisor, have engaged in a on-going pattern of harassment
against her since her return to work from her injury in March 1998, in
an effort to have her removed from the section. She identifies several
non-promotions in support of this claim, and more generally claims a
pervasive hostile work environment in daily working conditions. In her
appeal statement, complainant alleges that the incident identified in her
complainant is only one small aspect of the harassment she is claiming,
alleging that the two officials are working in concert to make her working
conditions so intolerable that she will be forced to quit. As evidence,
complainant indicates that prior to filing the EEO complaints, she held
a very good position at the agency, and earned outstanding evaluations,
whereas afterwards, she was transferred to a much less challenging
position, and no longer receives outstanding evaluations. She also
describes shunning by co-workers, and damage to her reputation.
Considering these claims as a whole, in the light most favorable to
complainant, we find that she has stated a cognizable claim of harassment
due to a hostile work environment. See Cervantes v. U.S. Postal Service,
EEOC Request No. 05930303 (November 12, 1993). In this case, reference
to the EEO Counselor's report in conjunction with the matter raised
in the instant complaint clearly shows that complainant was claiming
on-going harassment, and that the incident identified in the formal
complaint was not being claimed as an �isolated incident.� Moreover,
complainant reiterates on appeal that she was subjected to harassment
by agency officials.
For the reasons set forth above, we find that the agency's dismissal was
improper, and we REVERSE this determination, and REMAND the claim back
to the agency for further processing in accordance with 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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 27, 2000
__________________
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 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.