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.