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.