Judy G. Green, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01a02088 (E.E.O.C. Sep. 26, 2000)

01a02088

09-26-2000

Judy G. Green, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Judy G. Green v. Department of Housing and Urban Development

01A02088

September 26, 2000

.

Judy G. Green,

Complainant,

v.

Andrew M. Cuomo,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01A02088

Agency No. AT 99 04

DECISION<1>

In her complaint, complainant alleged that she was harassed by an Acting

Director when she contested the reassignment of an agency employee, who

previously sexually harassed her, to her work unit, and was subjected

to a hostile work environment when:

The Acting Director threatened her that she would not be promoted and

that she should transfer to another division; he would not approve her

annual leave; and her coworker sent a defamatory letter to the Inspector

General regarding her;

(2) She was threatened that the former harasser's desk would be placed

adjacent to her desk upon his reassignment; and misinformation was

distributed about her; and

She was treated differently when she was not reimbursed for her medical

and/or legal expenses related to the sexual harassment from the former

harasser.

The agency stated in its decision that the complaint involved

management's proposal to reassign complainant's former coworker.

The agency indicated that since the former coworker was not yet actually

reassigned, complainant was not harassed by that individual, and the

complaint failed to state a claim. With regard to claim (1), the agency

stated that the Acting Director's threat concerning non-promotion was

a mere remark and it failed to state a claim. The agency failed to

address the alleged denial of leave requests, described in claim (1).

With regard to claims (2) and (3), the agency indicated that complainant

failed to bring the matters to the attention of an EEO Counselor.

It is noted that the Commission will consider the agency's omission

to address the denial of leave requests, described in claim (1) as

a dismissal. Since the agency failed to provide proper grounds for

its dismissal, the Commission finds that such dismissal was improper.

The Commission also finds that this matter, together with the remaining

matters in claim (1) and claim (2) form a claim of harassment.

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).

The Commission's policy on retaliation prohibits any adverse treatment

that is based on a retaliatory motive and is reasonably likely to deter

the charging party or others from engaging in a protected activity.

See EEOC Compliance Manual Section 8, �Retaliation� No.915.003 at pp. 8-13

(May 20, 1998).

With regard to claim (1), the Commission, upon review of the complaint,

finds that complainant was clearly alleging harassment and a hostile

work environment following her protest concerning the reassignment of

her former coworker/harasser. Complainant's claim did not concern the

alleged reassignment. Specifically, complainant identified a number of

incidents when she was subjected to threats, derogatory remarks/statement,

harassment, and a hostile work environment. Complainant also indicated

that these incidents involved the Acting Director and her coworkers.

Under the circumstances, considering all of the alleged harassing

incidents and remarks/threats, and considering them together in the

light most favorable to complainant, the Commission finds that the

alleged incidents clearly could have been reasonably likely to have

deterred complainant from engaging in protected activity and, hence,

are sufficient to state a claim.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that an agency

may dismiss a claim that has not been brought to the attention of

a Counselor and is not like or related to a matter that has been

brought to the attention of a Counselor. With regard to claim (2),

although complainant did not specifically raise the matters during EEO

counseling, the Commission finds that they are like or related to the

alleged harassment and hostile work environment that had been raised

during EEO counseling. Furthermore, we note that claim (2), together

with claim (1), formed the alleged hostile work environment.

With regard to claim (3), the alleged matters arose from complainant's

previous sexual harassment claim and concern the agency's failure to

properly act in response to that complaint. We find that these matters

are like or related to complainant's other claims of retaliation and

were improperly dismissed by the agency for failure to bring the matter

to the attention of an EEO Counselor.

Accordingly, the agency's decision is hereby REVERSED. The complaint

is REMANDED for further processing as a complaint of harassment in

accordance with the ORDER below.

ORDER (E0800)

The agency is ORDERED to process the remanded complaint in accordance with

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

that it has received the remanded complaint 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 (K0800)

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 (M0800)

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).

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, Director

Office of Federal Operations

September 26, 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.