01993295
10-28-1999
Lolita F. Abille, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lolita F. Abille v. Department of the Navy
01993295
October 28, 1999
Lolita F. Abille, )
Appellant, )
)
v. ) Appeal No. 01993295
) Agency No. DON-99-00406-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The Commission finds that the agency's February 10, 1999 decision
dismissing two of three allegations raised in appellant's complaint on the
grounds of failure to state a claim and mootness is not proper pursuant
to the provisions of EEOC Regulation 29 C.F.R. ��1614.107(a) and (e).
The record shows that appellant filed a formal complaint of discrimination
alleging that she had been discriminated against on the bases of race
(Asian Pacific American), sex (female), and reprisal when:
(1) on November 11, 1998, she was placed on a 10-calendar day suspension
for being AWOL from August 20, 1998 through September 29, 1998;
(2) on November 23, 1998, appellant was denied keycard security access
to her work area; and
(3) on December 12, 1998, she was severely admonished by her supervisor
for calling 911 to report a broken steam pipe that was flooding the
work area.
The agency issued a final decision accepting allegation (1) for
investigation. Allegation (2) was dismissed on the grounds of failure
to state a claim and mootness after the agency found that appellant "and
her coworkers had their access restored ... and the problem was repaired
on December 3, 1998". Allegation (3) was also dismissed for failure to
state a claim and mootness after the agency found that "the call to 911
was completed. No adverse action was taken against the complainant".
On appeal, appellant argues that allegations (2) and (3) are reflective of
the on-going harassment and hostility against her. Regarding allegation
(2), appellant argues that, contrary to the agency's statements, there was
no malfunction of the system and that she was the only employee who had a
problem with her keycard access. Appellant argues that while access to
her workstation was denied to her, her coworkers entered and departed the
building with no limitations; and that she was forced to ask coworkers to
open the door for her every time she went to lunch and to the bathroom.
Appellant claims that these actions resulted in additional harassment
because she was then asked by her supervisor why she had taken so long
to go to the cafeteria or to the bathroom. Appellant further argues
that she was the only employee subjected to this harassment.
Concerning allegation (3), appellant argues that as the "the designated
Safety and Fire Warden, she received training to call 911 in instances
of danger to people or the facility." Appellant also contends that
when she followed the requirements of her collateral duty as Safety
and Fire Warden, she was humiliated and yelled at in front of her
coworkers. Appellant further argues that she is the only employee who
"over-supervised, her every move and every piece of work scrutinized".
Finally, appellant argues that the harassment is still taking place.
In her complaint appellant claims that she has been and is currently being
subjected to discriminatory harassment. To support her claim she raises
two incidents which she claims are examples of the harassment against her:
being denied access to her workstation and being yelled at and humiliated
for following her safety training (call to 911). The agency dismissed
both issues for failure to state a claim and mootness. We disagree.
An agency shall accept a complaint from any aggrieved employee or
applicant who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission
has held that while the regulations do not define the term "aggrieved
employee," the United States Supreme Court has interpreted it to mean
an employee who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21,
1994). "To state a claim under our regulations, an employee must allege
and show an injury in fact." Id. (citing Hackett v. McGuire Bros., 445
F.2d 447 (3d Cir. 1971)). "Specifically, an employee must allege and
show a `direct, personal deprivation at the hands of the employer,' that
is, a present and unresolved harm or loss affecting a term, condition
or privilege of his/her employment." Id. (citing Hammonds v. United
States Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor
v. United States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).
We find that the agency should have investigated allegations (2) and (3)
and not dismissed them. The only questions for the agency to consider
are whether the complaint alleges employment discrimination on a basis
covered by EEO statutes and if appellant is aggrieved. If the answer is
yes, then the agency must accept the complaint for processing, regardless
of what it thought of the merits. Odoski v. U.S. Department of Energy,
EEOC Appeal No. 01901496 (April 16, 1990). Appellant claims that she,
an Asian Pacific American female with prior EEO activity, was continuously
harassed by being denied access to her workstation and being yelled at and
humiliated after following her training requirements. Appellant further
alleged that no other employee was treated in this manner and that
after being denied access to her workstation she sought the assistance
of other coworkers to enter and exit the building, which she claims,
resulted in additional harassment. We find that these allegations are
sufficient under Odoski.
Moreover, a review of allegations (2) and (3) persuades the Commission
that the incidents in question are sufficient to support a claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal
of a complaint, or portion thereof, when the issues raised therein
are moot. To determine whether allegations (2) and (3) are moot, it
must be ascertained (1) if it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur,
and (2) if interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
A determination of whether a case is moot often turns on the second
element of the Davis test, that is, whether interim relief or events
have completely eradicated the effects of the alleged discrimination.
In this case, the agency dismissed allegations (2) and (3) as moot
after finding that appellant was provided access to her workstation on
December 3, 1998,<1> and because the 911 call was completed and no adverse
action was taken against appellant. However, appellant claims that:
(a) the incidents raised in the dismissed allegations are examples of the
harassment against her; (b) no other employee is treated as she is; and,
(c) the harassment and hostility against her are currently taking place.
Based on the foregoing, we find that the agency has failed to show that
there is no reasonable expectation that the alleged violations will
recur.
Accordingly, the dismissal of allegations (2) and (3) for failure
to state a claim and mootness was not proper and is hereby REVERSED.
Allegations (2) and (3) are REMANDED for further processing in accordance
with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
10/28/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The record shows that she was denied access since November 23, 1998.