01A05506
06-26-2001
Kerry G. Stewart, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kerry G. Stewart v. Department of Veterans Affairs
01A05506
June 26, 2001
.
Kerry G. Stewart,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05506
Agency Nos. 99-0893, 200H-1602
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 5, 2000, dismissing her complaints of unlawful
employment discrimination. Complainant filed her first EEO complaint
on January 22, 1999, Agency Case No. 99-0893, alleging that she was
subjected to general harassment and a hostile work environment on the
basis of reprisal for prior EEO activity when:
On November 4, 1998, complainant's supervisor (S1) placed her in
a loading position which allegedly violated an August 24, 1998 EEO
settlement agreement; and
On November 24, 1998, (S1) criticized her work and degraded her in
front of coworkers.
On May 14, 1999, the agency dismissed issue (2) pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim and forwarded issue (1) to
the agency's Office of Resolution Management for a breach determination.
With regard to issue (2), the agency stated that this issue was an
isolated incident which did not rise to the level of an actionable hostile
working environment. Complainant filed an appeal to the Commission
regarding the agency's dismissal of issue (2). With regard to issue
(1), the agency issued a decision on July 15, 1999, finding that it
was not in breach of the August 24, 1998 settlement agreement.<1>
On December 10, 1999, the Commission remanded the dismissed portion
of complainant's complaint back to the agency for processing with the
remainder of the complaint. The agency accepted the remanded portion
without realizing that the remainder had been resolved via the July 15,
1999 agency decision.
On February 14, 2000, complainant filed a second formal complaint, Agency
Case No. 200H-1602. In the second complaint, complainant alleged that she
was subjected to general harassment and a hostile work environment when:
On November 13, 1999, the agency controverted complainant's workers'
compensation claim, which was subsequently denied by the Department of
Labor on December 23, 1999;
On December 21, 1999, the Food Service Coordinator (Person A) contacted
complainant via telephone and asked her to apologize to a coworker (E1)
as a resolution of his EEO complaint; and
On December 29, 1999, the Food Service Foreman (Person B) denied that
he indicated on a CA-1 form that complainant's shoulder injury was not
incurred in the performance of her job duties.
On March 24, 2000, the agency decided that the information raised in Case
No. 200H-1602 was additional evidence in support of complainant's original
complaint, Case No. 99-0893, and therefore added the new information
to the original complaint. The revised claim is defined by the agency
as a claim that complainant was subjected to general harassment and a
hostile work environment when:
On November 24, 1998, complainant's supervisor (S1) criticized her work
and degraded her in front of her coworkers;
On November 13, 1999, the agency controverted complainant's workers'
compensation claim, which was subsequently denied by the Department of
Labor on December 23, 1999;
On December 21, 1999, the Food Service Coordinator (Person A) contacted
complainant via telephone and asked her to apologize to a coworker (E1)
as a resolution of his EEO complaint; and
On December 29, 1999, the Food Service Foreman (Person B) denied that
he indicated on a CA-1 form that complainant's shoulder injury was not
incurred in the performance of her job duties.
The agency issued a decision on July 5, 2000, in which it dismissed
complainant's complaint for failure to state a claim. In its decision,
the agency dismissed issue (1) for failure to state a claim on the same
grounds as previously stated in its May 14, 1999 decision. With regard
to issues (2) and (4), the agency stated that these issues involved an
impermissible attack on the workers' compensation process. The agency
dismissed issue (3) for failure to show a harm or loss to a term,
condition, or privilege of employment. Specifically, the agency
argued that the incident described in issue (3) was an attempt to
resolve a coworkers EEO complaint and thus, could not serve as a basis
for complainant's EEO complaint. Further, the agency stated that the
alleged incidents identified by complainant were not severe or pervasive
to alter the conditions of her employment.
On appeal, complainant states that as a result of her assignment to the
tray line on November 4, 1998, pursuant to the August 24, 1998 settlement
agreement, several workers began to make comments that she received
special treatment and made negative comments about her work assignments
and duties. Complainant claims that the derogatory statements made by her
supervisor on November 24, 1998, resulted in increased harassment from her
coworkers regarding her reassignment and new duties. Complainant claims
that she is subjected to harassment on a weekly basis and she states that
despite repeated reports of the hostile work environment to management,
no action has been taken.
Upon review of the record, we find that the agency properly dismissed
issues (2) and (4) for failure to state a claim. Complainant's formal
complaint and other correspondence with the agency indicate that she is
challenging the Office of Workers' Compensation Program (OWCP) denial
of her workers' compensation claim. Complainant's challenge of an OWCP
decision is not within the Commission's jurisdiction.
In issue (3) complainant claims that she was subject to harassment when
Person A requested that she apologize to E1. The record reveals that on
December 1, 1999, Person A contacted complainant in response to an EEO
complaint filed by Employee 1 and asked complainant to apologize to E1 as
a resolution of his EEO complaint. The agency states that this incident
was an attempt to resolve E1's EEO complaint. Furthermore, the agency
states that this incident was not sufficiently severe or pervasive to
alter the conditions of complainant's employment. Complainant claims
that the request that she apologize to E1, a person who complainant
alleged had physically attacked her, was another form of harassment.
Upon review, we find that the agency properly dismissed issue (3) for
failure to state a claim. Issue (3) appears to concern the agency's
attempts to informally resolve an EEO matter. As a matter of law, a
settlement offer does not give rise to a viable allegation. Such offers
do not adversely affect a term, condition or privilege of employment.
Further, in the Commission's view, settlement negotiations, including any
statements and proposals made therein, are to be treated as confidential
and privileged in order to facilitate candid interchange to settle
disputes informally. To allow complainant to base a new complaint on
a settlement offer would defeat this purpose. Montague v. Department
of the Army, EEOC Request No. 05920321 (September 16, 1997), citing
Olitsky v. Spencer Gifts, Inc., 843 F.2d 123, (5th Cir.), cert. denied,
488 U.S. 925 (1988). Furthermore, we note that to the extent that
complainant is challenging the filing of a complaint by a coworker,
the Commission has held that the filing of an EEO complaint by another
individual does not constitute an injury to a term, condition, or
privilege of complainant's employment. The processing of a complaint
by an employee, wherein the employee challenges the filing of an EEO
complaint by a coworker or other agency employee, would have a chilling
effect on the filing of EEO complaints by aggrieved persons. See Blinco
v. Department of the Treasury, EEOC Request No. 05940194 (May 26, 1994).
Finally, with regard to issue (1), we find that the agency improperly
defined this issue. The Commission finds that based on complainant's
formal complaint, the EEO Counselor's report, and other documents,
complainant alleged that she was subjected to harassment which began
when she was reassigned on November 4, 1998, and intensified when her
supervisor criticized her work and degraded her in front of coworkers on
November 28, 1998. On appeal, complainant cites several incidences of
allegedly hostile statements made from coworkers following the November
28, 1998 statement and claims that her coworkers make these statements
on a weekly basis. Furthermore, complainant indicates that she has
contacted management on several occasions to remedy the situation, but
that no actions have been taken by management to resolve the problem.
The Commission finds that complainant has stated a cognizable claim of
harassment as defined above.
Accordingly, the agency's dismissal of issue (1) was improper and is
REVERSED and this issue is REMANDED for further processing in accordance
with the Order below. The agency's dismissal of issues (2), (3), and
(4) was proper and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
June 26, 2001
__________________
Date
1There is no evidence in the record that
complainant filed an appeal from the agency's July 15, 1999 breach
determination.