01990023
11-05-1999
John V. Engels, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
John V. Engels v. Department of the Treasury
01990023
November 5, 1999
John V. Engels, )
Appellant, )
)
v. ) Appeal No. 01990023
) Agency No. 98-3192
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 4, 1998, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision accepted for investigation allegations 1, 2,
and 3 (nonselection for several GS-12 vacancies, from 1991 to March 30,
1998). The decision dismissed the remaining allegations (unnumbered)
for failure to state a timely raised harassment claim.
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved
due to an unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et
seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,
as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Even where a complaint
does not challenge an agency action or inaction regarding hiring,
termination, compensation or any other specific term, condition,
or privilege of employment, the complaint may still state a claim if
the complaint allegations are sufficient to state a hostile or abusive
environment claim. Id., citing Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment).
After a review of the record, including the appeal submissions of the
parties, the Commission finds that the appellant did not timely raise a
harassment/hostile work environment claim. The appellant first sought
counseling on April 16, 1998. However, the only factual allegation of
harassment which occurred during the counseling period or the 45-day
period which preceded the April 16, 1998 counseling request was an
alleged disparaging remark made by an agency official regarding the
appellant's attitude. The second incident addressed in the final agency
decision as occurring in April 1998, allegedly occurred in April 1988.
See appellant's June 25, 1998 complaint clarification letter at page 5.
The record also includes copies of several memoranda issued by agency
officials in 1995 and 1996 which the final agency decision did not
address. The memoranda contain remarks or references which the appellant
found offensive. The Commission finds that, even if proven true, these
allegations do not indicate that the appellant may have been subjected to
harassment during the period from 1995 to May 1998 that was sufficiently
severe or pervasive to alter the conditions of the appellant's employment.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996) (allegations that supervisor had "verbally attacked"
the complainant on one occasion, attempted to charge him with AWOL,
and disagreed with the time the complainant entered into a sign-in log,
were insufficient to state a harassment claim); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's
remarks on several occasions, unaccompanied by any concrete action,
were not sufficient to state a claim); and Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995) (allegations
that on one occasion a supervisor threw a file on the complainant's desk
and berated her in a loud voice in the presence of other employees,
causing her embarrassment and humiliation, were insufficient to state
a harassment claim).
The Commission also finds that while the appellant may have been subjected
to incidents in 1987 and 1988 that were sufficiently severe to state a
hostile work environment claim, see Cobb, supra, the appellant did not
timely raise these matters and additional objectionable remarks allegedly
made by coworkers in 1992, 1993, and 1994, with an EEO counselor.
The Commission also finds that the alleged coworker misconduct was not
sufficiently related in time or content to the timely raised incident
of alleged supervisory harassment to state a continuing hostile work
environment claim.
However, the Commission further finds that the final agency decision
erred when it did not include retaliation as an alleged basis for the
appellant's non-promotion. The appellant's complaint clarification letter
alleges that his opposition to the alleged harassment by his coworkers
and agency officials may have been a factor in his non-promotion
to a GS-12 vacancy. See, for example, appellant's June 25, 1998
complaint clarification letter at pages 28, 31, and 33. Therefore,
the Commission finds that on remand the agency also should investigate
to determine whether the appellant's nonpromotion was motivated in part
by retaliation for his opposition to practices which he believed were
unlawful under Title VII of the Civil Rights Act of 1964, as amended.
See 29 C.F.R. �1614.101(b).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's harassment allegations; REVERSES the
agency's implicit dismissal of retaliation as a basis for the alleged
discrimination in promotion; and REMANDS the complaint to the agency
for processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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� (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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
11/05/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations