Lisa S. Merritt, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00412 (E.E.O.C. Apr. 24, 2000)

01a00412

04-24-2000

Lisa S. Merritt, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Lisa S. Merritt, )

Complainant, )

) Appeal No. 01A00412

v. ) Agency No. 98-DCWIIX-038

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Commissary Agency), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (female) and reprisal,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Store Worker at the agency's Fort Wainwright Commissary, in Fort

Wainwright, Alaska. Complainant sought EEO counseling and, subsequently,

filed a formal complaint on October 21, 1998. In her complaint, she

alleged discrimination on the bases of sex (female) and reprisal when:

She was coerced into a sexual affair with the Commissary Officer during

which she suffered from severe emotional trauma and humiliation;

The Western Pacific Director (DIR) interfered with complainant's rights

to present an EEO complaint;

Complainant was issued a Letter of Concern for causing a disturbance

at the Eielson Commissary;

Her request for sick leave was denied and instead management charged

her with absence without leave (AWOL); and

She terminated her employment under a constructive discharge due to

the intolerable work environment and sexual harassment.

The agency issued a final agency decision on November 20, 1998 (FAD-1)

which accepted for investigation claims (3) - (5), regarding constructive

discharge and hostile work environment, and dismissed claims (1) and (2),

regarding sexual harassment and hostile work environment. Complainant

filed an appeal with the Commission regarding FAD-1. The Commission

issued its decision in Merritt v. Department of Defense, EEOC Appeal

No. 01991944 (November 8, 1999) which found that claims (1) and (2) were

part of complainant's complaint of a hostile work environment. We found

that the agency improperly dismissed the claims and reversed the FAD.

The Commission remanded the claims to the agency for further processing.

On September 13, 1999, the agency issued its final decision (FAD-2)

concerning claims (3)-(5) which it accepted for investigation in FAD-1.

In FAD-2, the agency found that complainant failed to establish a

prima facie case of sex discrimination or retaliation. It further

found that complainant failed to demonstrate that her work environment

was so intolerable and hostile as to warrant terminating her employment.

The FAD-2 stated that the agency articulated legitimate, nondiscriminatory

reasons for its action which complainant failed to show were pretext to

mask discrimination.

Complainant appeals from FAD-2. On appeal, complainant argues that she

was forced to resign because she was sexually harassed and coerced into

an affair with the CO. Further, she alleges that she was subjected to

an intolerable working environment because of the actions by co-workers

and management. The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

The Commission finds that the separation of the claim of sexual harassment

from the claim of constructive discharge has had the effect of fragmenting

complainant's complaint of discrimination. The fragmentation, or breaking

up, of a complainant's legal claim during EEO complaint processing has

been a significant problem in the federal sector. For complainants,

fragmented processing can compromise their ability to present an

integrated and coherent claim of an unlawful employment practice for

which there is a remedy under the federal equal employment statutes.

For agencies and the Commission, fragmented processing substantially

increases case inventories and workloads when it results in the

processing of related matters as separate complaints. See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), 5-5 (November 9, 1999).

In this case, we find that complainant's claim of constructive discharge

has been fragmented, such that her ability to make a coherent claim of

discrimination has been compromised. Although the instant complaint may,

upon a cursory view, appear insufficient to constitute a constructive

discharge, a further examination of the record shows that complainant

has alleged a pattern of sexual harassment and hostile work environment

which lead to her eventual resignation. The Commission finds, therefore,

that complainant's claim of sexual harassment and hostile work environment

and claim of constructive discharge should be investigated and adjudicated

as one complaint. In order to rectify the problem and ensure efficient

and equitable processing of the complaint, we remand this matter to the

agency so that the fragmented claims may be consolidated back into a

single complaint.

CONCLUSION

Accordingly, we VACATE the agency's finding of no discrimination,

and REMAND this matter in accordance with the following ORDER, and the

applicable EEOC Regulations.

ORDER

The agency is ORDERED to consolidate for processing the claims of sexual

harassment and hostile work environment which were the subject matter of

EEOC Appeal No. 01991944 and the claims of hostile work environment and

constructive discharge which are the subject matter of this instant case.

The agency shall make every effort to locate and determine the status

of complainant's claims in the federal EEO process, and consolidate

the claims for hearing, if complainant requests, or for an agency final

decision.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation, including

evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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:

April 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.