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The agency rescinded its FAD on January 20, 1999, and issued a new FAD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