01A10242
08-02-2001
Jose A. Soledad, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jose A. Soledad v. Department of the Treasury
01A10242 and 01A12611
August 2, 2001
.
Jose A. Soledad,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01A10242 and 01A12611
Agency Nos. 00-2315 and 01-2113
DECISION
BACKGROUND
Agency No. 00-2315
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated September 13, 2000, dismissing 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.
In his complaint, complainant alleged that he was discriminated against
and subjected to a hostile work environment on May 1, 2000, because
of his national origin (Hispanic), disability, and/or reprisal for his
prior EEO activity when the Chief Inspector:
1. Belittled, degraded, and humiliated him by pointing her index finger
toward him, and in a raised and angry tone of voice, stated; �None of your
inspectors are wearing their vests, and you are in direct violation.�<1>
2. Prepared a memorandum which recommended that the Port Director find
other personnel to conduct the (drug) transfers who would comply with
mandated directions.�<2>
The complainant came across the memorandum when he went to use a fax
machine, and it had been left behind, on the printer. The complainant
alleged that he feared his removal as a supervisor, and the memorandum
was degrading, humiliating, unprofessional and retaliatory for prior
EEO involvement.
The FAD dismissed the complaint of discrimination for failing to state
a claim, finding that the complainant was not an �aggrieved� employee
because no concrete action subsequently took place, and the acts were
insufficient to establish a hostile work environment. The complainant
timely appealed from the FAD.
Agency No. 01-2113
Complainant filed a timely appeal with this Commission from a FAD dated
February 21, 2001, dismissing his complaint of unlawful employment
discrimination in violation of Title VII.
In his complaint, dated December 22, 2000, complainant alleged that he
was subjected to a continuing pattern of discrimination and retaliation
due to his ethnicity and a presumption by the agency that all Hispanic
employees are corrupt. The following allegations, as numbered in the FAD,
involve actions by the Chief Inspector, his supervisor, except number 8.
Allegations numbered 1 and 2 are the same as set forth above in Agency
No. 00-2315.
Contact of Internal Affairs concerning the issue involved in number 1.
Rejection of the majority of complainant's self-inspections.
Complainant was ordered to cancel a doctor's appointment.
He was yelled at, and his paperwork was looked through.
He was asked a question in a loud voice.
Complainant learned from reading a Congressman's press release that the
U.S. Customs [Service] believed that Hispanic employees were corrupt.
The FAD dismissed the complaint of discrimination for failing to state a
claim and because it states the same claims that have already been decided
by the agency, finding that the complainant was not an �aggrieved�employee
because there was nothing in the record to show how the complainant was
harmed with respect to a term, condition, or privilege of employment.
In addition, the agency found that no incident, or combination of
incidents, rose to a level that would be considered harassment under
Title VII. The complainant timely appealed from the FAD.
ANALYSIS AND FINDINGS
Since the two appeals contain many of the same allegations, claims,
and arguments, the issues will be discussed together in this decision.
Complainant's brief states; �While allegations numbered 1 and 2 may
have been alleged previously, they still constitute background evidence
to demonstrate the hostile work environment.� Allegations numbered 1
and 2, under Agency No. 01-2113, are the same as allegations numbered 1
and 2 under Agency No. 00-2315. The allegation contained in numbered
5 under Agency No. 01-2113 is alleged by the agency to be the same
allegation that is pending in Agency No. 99-2407. However, the record
is not sufficiently complete to ascertain whether the allegations and
the incidents are the same in both complaints.
After a careful review, we find that the agency improperly fragmented
and dismissed the claims in the instant complaints.
HARASSMENT AND HOSTILE WORK ENVIRONMENT ALLEGATIONS
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 if a reasonable person would find [it]
hostile or abusive and the complainant subjectively perceives it as such.
Harris, supra at 21-22. Thus, where a complaint does not challenge
an agency action or inaction regarding a specific term, condition
or privilege of employment, a claim of harassment may nonetheless be
actionable if the conduct at issue is shown to be sufficiently severe
or pervasive as to alter the conditions of complainant's employment.
The Commission has consistently held that when confronted with allegations
in claims like this, the agency cannot ignore the pattern aspect of
the claim and define the issues in a piecemeal manner. See Ferguson
v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999);
Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November
3, 1994). By its nature, a hostile environment claim must set out conduct
that is either severe or pervasive enough to create an environment that a
reasonable person would find hostile or abusive. See Harris, supra at 22.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
To establish a case of harassment that creates a hostile work environment,
the harassment of which complainant complains, generally must be
ongoing and continuous in order to constitute unlawful discrimination.
See McGivern v. U.S. Postal Service, EEOC Request No. 05930481 (March
17, 1994); Vargas v. Department of Defense, EEOC Request No. 05931047
(October 7, 1993). See Walker v. Ford Motor Company, 684 F.2d 1355,
1358-9 (11th Cir. 1982); Johnson v. Bunny Bread Co., 646 F.2d 1250,
1257 (8th Cir. 1981). In the instant case, the complainant alleges
incidents which, when taken together, are sufficient to state a claim
of harassment and hostile work environment.<3> However, to the extent
complainant may have been engaged in conduct in violation of agency
regulations and/or policies, the agency could articulate a legitimate
nondiscrimatory reason for the action.
RETALIATION ALLEGATIONS
As concerns the allegation of retaliation, the Commission has adopted
the policy that the statutory retaliation clauses prohibit any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter the charging party or others from engaging in protected activity.
The Commission has found that petty slights and trivial annoyances are
not actionable, as they are not likely to deter protected activity, but
that more significant retaliatory treatment could be challenged regardless
of the level of harm. See EEOC Compliance Manual on Retaliation at 8-13
through 8-15.(May 20, 1998).
The Commission's position is based on statutory language and policy
considerations. The anti-retaliation provisions are exceptionally broad.
They make it unlawful "to discriminate" against an individual because
of his or her protected activity. This is in contrast to the general
anti-discrimination provisions which make it unlawful to discriminate
with respect to an individual's "terms, conditions, or privileges of
employment." The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. They do not restrict
the actions that can be challenged to those that effect the terms and
conditions of employment. Thus, a violation will be found if an employer
retaliates against a worker for engaging in protected activity through
threats, harassment in or out of the workplace, or any other adverse
treatment that is reasonably likely to deter protected activity by that
individual or other employees. Id. Here, the pointing of a finger
and speaking in a raised and angry tone of voice, the preparation of a
memorandum requesting that the Port Director find other personnel to
conduct complainant's drug Transfers, initiating an Internal Affairs
report, as well as the other allegations, when taken together, rise to
the level of activity that could be reasonably likely to deter protected
activity, especially, when these alleged actions were taken by the
complainant's supervisor, who was involved in the complainant's prior
EEO activity. However, to the extent complainant may have been engaged
in conduct in violation of agency regulations and/or policies, the agency
could articulate a legitimate nondiscrimatory reason for the action.
NEW ALLEGATIONS
To the extent that the complainant alleges, on appeal, new allegations,
by providing additional information in a Declaration, complainant is
advised that if he wishes to pursue, through the EEO process, the
additional reprisal claims he raised for the first time on appeal,
he shall initiate contact with an EEO Counselor within 15 days after
he receives this decision. The Commission advises the agency that if
complainant seeks EEO counseling regarding the new claims within the above
15-day period, the date complainant filed the appeal statement in which
he raised these claims with the agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO Counselor contact date. Cf. Alexander J. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
The agency's attempts to dismiss the complainant's complaints for
failure to state a claim are improper. When all the allegations are
viewed as a claim of harassment, the incidents are sufficiently severe or
pervasive as to have altered the conditions of complainant's employment,
and sufficiently allege a reprisal claim. Based on these incidents,
we find that complainant has set forth actionable claims of harassment
and reprisal. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Accordingly, after a careful review
of the entire record, we find that the agency improperly dismissed
complainant's claims. The FADs are hereby REVERSED and the complaints
are REMANDED to the agency for further processing.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (M0701)
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 (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
August 2, 2001
Date
1 Customs Directive No. 4510-020, dated March 17, 2000, mandates that a
bullet proof vest be worn during transportation, storage, or destruction
of seized narcotics. The record reflects that this directive may have
been inappropriately suspended as to �narcotic transfers.�
2 The memorandum referenced Customs Directive No. 4510-020. The Chief
Inspector may not have been knowledgeable of the suspension of the
directive memorandum.
3 The Congressman's press release is not evidence of agency harassment
or reprisal because it does not have any nexus to the agency.