Lark A. Sims, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
01a05216 (E.E.O.C. Aug. 23, 2000)

01a05216

08-23-2000

Lark A. Sims, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Lark A. Sims v. Department of Commerce

01A05216

August 23, 2000

.

Lark A. Sims,

Complainant,

v.

William M. Daley,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A05216

Agency No. 00-63-00749D

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission.<1> The

MOU was entered into in order to process complaints arising from the

2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

The Commission's Washington, D. C. Field Office dismissed the instant

complaint for failure to state a claim. In her complaint, complainant

alleged discrimination on the bases of race (Native American), sex

(female), religion (Methodist), and in reprisal for prior EEO activity

when she was sexually harassed, subjected to a hostile work environment,

and ultimately terminated. In its decision, dated July 17, 2000, the

Field Office found no evidence of discrimination.

The Field Office noted that complainant neither cited comments of �a

vaguely sexual nature� nor alleged any unwanted touching or similar

conduct. Her claim that a supervisor stared at her breasts was found

insufficient to state a claim. Concerning her race, the Field Office

found her claim of co-workers calling one another �chief� insufficient

to indicate racial harassment. The Field Office found no intimation

that complainant suffered harm based on her religion; it also opined

that complainant's termination for taking personnel information from

her supervisor's desk, sharing the information with co-workers, and

making false accusations against co-workers was not based on prohibited

discrimination.

On appeal, complainant argues that she has been accused of things that

she �ha[s] not said or done.� She attached an affidavit addressing her

claims. In the affidavit, complainant stated that a coworker looked at

her as though he was lusting after her, stared at her breasts, and asked

if she was �hiding from him.� Complainant claimed that her supervisor

laughed when complainant raised her concerns over the coworker's

behavior. She contended that another management official instructed

her to clean her desk in fifteen minutes or be fired. This official,

according to complainant, also made rude comments about complainant's

education, and asked �who the hell are you� when she tried to obtain

a phone number from him. She claims that coworkers monitored her work

performance and reported their findings to her supervisor. Further,

complainant indicates that money was taken from her desk, a credit card

was taken from her personal effects, and family members were telephoned

by coworkers when phone numbers were taken from her personal organizer.

After complainant filed a complaint alleging harassment, she was

terminated.

EEOC Regulations allow complaints to be dismissed for failure to state

a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) . To state a claim,

complainant must allege harm to a term, condition, or privilege of her

employment on the basis of race, color, religion, sex, national origin,

age, or disabling condition. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Harassment is actionable if it is sufficiently severe or pervasive

to alter the conditions of the complainant's employment. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) 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.

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).

In the present complaint, complainant's termination affects a

term, condition, or privilege of her employment. The Field Office's

determination that complainant's termination was justified addresses

the merits of her claim; it is irrelevant to whether she has stated a

justiciable claim. Further, her claim of harassment, when considered

together with her termination, is sufficiently severe to state a claim

of employment discrimination. See Cobb v. Department of the Treasury,

supra.

CONCLUSION

The Field Office's decision dismissing the complaint is REVERSED and

we REMAND the complaint to the Field Office for further processing in

accordance with this decision, the Memorandum of Understanding, and

applicable regulations.

ORDER

The Washington, D.C. Field Office shall, pursuant to the Memorandum

of Understanding referenced in this decision, conduct settlement

negotiations on the instant complaint or notify complainant that the

complaint has been accepted and forward the complaint to the agency for

further investigation.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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

August 23, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at www.eeoc.gov.