Louise Ridder, Vincent J. Connelly, Complainants,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01991152 (E.E.O.C. Mar. 7, 2000)

01991152

03-07-2000

Louise Ridder, Vincent J. Connelly, Complainants, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Louise Ridder v. Department of Transportation

01991152

March 7, 2000

.

Louise Ridder,

Vincent J. Connelly,

Complainants,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal Nos. 01991152, 01991274

Agency Nos. 3-99-3001, 3-98-3110

DECISION

EEOC Regulations allow the consolidation of complaints of discrimination

filed by different complainants "consisting of substantially similar

allegations of discrimination or relating to the same matter...." 64

Fed. Reg. 37,644, 37,661 (1999) (to be codified at 29 C.F.R. � 1614.606);

See EEOC - Management Directive (MD) 110, as revised, Nov. 9, 1999,

5-14. Since the claims of Louise Ridder and Vincent J. Connelly are

substantially similar, and stem from the same incidents, the Commission

consolidates their complaints herein.

On October 30, 1998, the agency issued a final decision (FAD)

dismissing the complaint of Louise Ridder (complainant-1), Agency

No. 3-99-3001. Therein, the agency found that complainant-1 failed to

state a claim when she alleged a violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. on the bases

of sex (female) and in reprisal for prior EEO activity from disparaging

comments made by a co-worker on September 16, 1998. On November 19, 1998,

complainant-1 filed a timely appeal from the FAD with this Commission

(01991152). <1>

The agency rescinded its FAD on January 20, 1999, and issued a new FAD

defining the complaint as: on September 16, 1998, August 20, 1998,

and other recent dates, a co-worker made disparaging and harassing

comments apparently towards complainant-1 and other complainants;

then management threatened possible disciplinary action against

complainant-1. This new FAD again dismissed the complaint for failure

to state a claim. Specifically, the agency found that complainant-1 was

not harmed by the co-worker's' comments, and the disciplinary report

was not completed or placed in complainant-1's file. The agency noted

that complainant-1's dispute with the Controller-In-Charge (CIC) was a

misunderstanding, and that complainant had refused to accept the CIC's

apology when offered. Complainant-1 again timely appealed.

On appeal, complainant-1 argues, through her attorney, that she has been

subjected to a pattern of harassment. Complainant-1 asserts that the

CIC and co-workers bragged about being named the harassing official

in complaints, ridiculed complainant-1's prior complaint, mimicked

complainant-1, and claimed to have management's approval for their

harassment. She claims that the CIC abused his authority by stating

that he "did not have to deal with them (employees who have filed

complaints)." Complainant-1 also argues that she did not misunderstand

the CIC. According to complainant-1, the CIC's first words to the EEO

Counselor were "why do they keep on looking for problems?" Additionally,

complainant-1 argues that the agency improperly defined her complaint

by condensing eight pages of explanation in her formal complaint into

a single statement concerning harassment.

In complainant-1's formal complaint, dated September 21, 1998,

complainant-1 alleged that she was being scrutinized very closely

"to see if they can get something on [her]," and was subjected to

harassment that left her nervous while on the job. She also contended

that a manager allowed employees to come in early and accrue credit-time

to make-up for time taken-off for EEO activities. Complainant-1 argued

that she and several other employees (including Vincent J. Connelly

(complainant-2)) had meetings scheduled with an EEO Investigator,

and arrived early to accrue credit-time. Complainant-1 alleged that

the CIC said "I finally got them, they came in an hour early.... I'm

going to nail their ass." Then complainant-1 was summoned for a meeting

with management, allowed union representation, and given a "record of

conversation" for taking credit-time without prior approval from the CIC.

In a separate undated statement, complainant-1 explained that she was

originally brought into the supervisor's office on August 22, 1998. She

contended that upon threatening to raise the matter with EEO, the

manager "back-pedaled," and offered to leave the record-of-conversation

incomplete. The manager also asked "off the record" if complainant

had considered disability retirement because she suffered from

migraines. The manager asked complainant if the headaches were related to

work-stress. According to the statement, complainant again met with the

manager on August 31, 1998, when the manager delivered the results of her

investigation of the credit-timeissue. Complainant also asserted that the

manager's report contained a statement from the CIC that complainant-1

and complainant-2 were nervous on the job because they were incompetent.

Meanwhile, complainant-2 filed a formal complaint on September 24, 1998,

concerning discipline from the same credit-time incident on the bases of

age and reprisal. Complainant-2 alleged that he was subjected to constant

"monitoring," from a small group of controllers, and was cornered by

several controllers who told him that "they are out for blood...." On

July 23, 1998, when complainant-1 and complainant-2 relieved the CIC

and another controller from their positions, complainant contended that

the CIC and the other worker remained in the tower, and were very loud

and disruptive. Complainant alleged that the two positioned themselves

directly behind complainant-1 and complainant-2 and obstructed their

movement about the tower while they were trying to perform their

duties. Complainant also claimed harm from the record-of-conversation

complainant received regarding credit-time. Complainant also notes that

on August 23, 1998, management tore-up the Record of Conversation.

On October 27, 1998, the agency issued a FAD dismissing complainant-2's

complaint for failure to state a claim. Complainant filed a timely

appeal on November 30, 1998 (01991274). On appeal, complainant-2

argues that he has suffered from a pattern of harassment. Further,

he argues that regardless of whether the Report of Conversation

was torn-up, he still suffered harm when the CIC attempted to have

him disciplined. Complainant-2 notes that the nature of the meeting

was disciplinary -- union representation was provided, a supervisory

investigation was conducted, and a report was written concerning the

incident.

In response to the appeals for 01991152 and 01991274, the agency argues

that complainant was not harmed because no concrete action was taken

against either complainant that resulted in documents being placed in

their personnel records. The agency notes that neither party has shown

that the Records of Conversation were placed in their official records,

or that the action constituted discipline. Further, the agency contends

that it has not defined the claims improperly, but even if the Commission

finds otherwise, the claims alleged on appeal do not amount to hostile

work environment harassment. The agency notes that complainant-1 only

lists a few incidents of alleged harassment, and argues that "being

humiliated" in front of her peers, and "ridiculed about her prior

complaints," did not establish a pattern of harassment.

The record for 01991152 includes a copy of the "Record of Conversation"

for complainant-1. This record states that complainant was brought in

with union representation to discuss an apparent violation of credit-time

regulations. The record further states, however, that "I have no trouble

with [complainant-1's] actions ...." The record does not contain a copy of

the internal report investigating the credit-time incident. The record

for 01991274 also includes the record-of-conversation that the agency

and complainant claims was destroyed. This record states that the policy

for credit-time was explained to complainant-2, and that he was warned

to be more careful in the future.

ANALYSIS AND FINDINGS

Initially, the Commission finds that the agency misconstrued both

complaints by not viewing them as claims of harassment. In 01991152,

the agency failed to address the claims that complainant was subjected

to increased scrutiny, was ridiculed regarding her prior complaint, was

called incompetent by the CIC in the credit-time incident report, and

was asked to consider disability retirement. Complainant also argued on

appeal that the CIC and others mimicked complainant, and bragged about

being named the responsible agency official in harassment claims.

Similarly, in 01991274, the agency never referred to the claims that

complainant-2 also was subjected to constant monitoring, was told to

watch his step because the CIC was "out for blood," and was interfered

with while performing his job duties.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. 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. Thus, not all claims of harassment are

actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

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).

The Commission has held that subjecting a complainant to increased

scrutiny renders her aggrieved. See Ransom v. Department of the

Treasury, EEOC Request No. 05990567 (Nov. 5, 1999) (affirming

a finding that increased scrutiny claim states a claim); Rydberg

v. Social Security Administration, EEOC Request No. 05950944 (Aug. 20,

1996). The obstruction of complainant-1 and complainant-2 while they

were working, increased scrutiny of their work, ridicule of their prior

claims, attempt to discipline both complainant-1 and complainant-2 and

"nail their ass," comments regarding their nervousness and competence

in internal investigation files, and refusal to "deal with them," all

perpetrated by the same official (the CIC) over a few months, creates

a pattern of harassment. Further, when all of the matters alleged are

viewed together in a light most favorable to complainant, they are

sufficient to state a claim of hostile work environment harassment,

even if the records-of-conversation did not result in discipline noted

in official personnel files.

CONCLUSION

Accordingly, the agency's dismissals in 01991152 and 01991274 are

REVERSED, and the claims are REMANDED for further investigation.

ORDER

The agency is ORDERED to process the remanded claims as defined herein

in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

consolidate both complaints for a single investigation pursuant to 29

C.F.R. � 1614.606. The agency also must acknowledge to both complainants

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

both complainants a copy of the investigative file and also shall notify

the complainants 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 either complainant

requests a final decision without a hearing, the agency shall issue a

final decision for that complaint within sixty (60) days of receipt of

complainant's request.

A copy of the agency's letters of acknowledgment to the complainants and

an 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 (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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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

March 7, 2000

__________________

Date

1 On 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.