01992287_r
12-01-1999
Mary E. Robertshaw, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force (National Guard Bureau), Agency.
Mary E. Robertshaw, )
Complainant, )
)
v. ) Appeal No. 01992287
) Agency No. T-0179-NV-F-01-99-A
F. Whitten Peters, )
Secretary, )
Department of the Air Force )
(National Guard Bureau), )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. � 621 et seq.<1> The final agency
decision was issued on December 18, 1998. The appeal was postmarked
January 26, 1999. Accordingly, the appeal is timely, and is accepted
in accordance with EEOC Order No. 960, as amended.<2>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed the complaint
on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on October 23, 1998.
On December 3, 1998, complainant filed a formal EEO complaint wherein she
claimed that she had been subjected to discriminatory harassment on the
bases of her age (54), sex (female), color (white), and religion (Mormon)
when her Lieutenant Commander made derogatory remarks about her age and
when he requested that she transfer to another position. According to
complainant, the last such conversation occurred on October 6, 1998.
The record indicates that complainant claimed that on June 18, 1998,
the Lieutenant Commander told her with regard to a proposed job transfer
that if she was 30 or 35 he would not even consider the job transfer,
but since she is 54 and her career is basically over, it does not matter
where she works as long as she gets a paycheck.
In its final decision, the agency dismissed the complaint on the grounds
of failure to state a claim.
On appeal, complainant contends that due to her age, the Lieutenant
Commander gave her position to another employee. Complainant claims
that her sole purpose since she was assigned to an Analysis position is
to train that person and have the trainee do her job.
ANALYSIS AND FINDINGS
Volume 64 Federal Register 37,644, 37,656 (1999) (to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides that prior to
a request for a hearing in a case, the agency shall dismiss an entire
complaint which fails to state a claim under to 29 C.F.R. �� 1614.103;
1614.106(a). For employees and applicants for employment, EEOC Regulation
29 C.F.R. � 1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. � 1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether a claim is
within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has claimed employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one 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 (April 21, 1994).
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).
As a general rule, derogatory remarks, standing alone, do not sufficiently
harm a person for the purposes of standing. The Commission requires
that a remark or comment be accompanied by a concrete action in order
for a complainant to suffer sufficient injury to be aggrieved. Cobb,
supra.. Of course, such a holding must also be viewed in light of the
large body of law surrounding hostile environment claims. The distinction
being that an isolated remark may not cause sufficient injury to aggrieve
an employee, but when the remarks become severe and pervasive they can
create a hostile environment.
There remains no real rule that can be extracted from the Commission's
decisions involving derogatory remarks that provides clear guidance on the
difference between isolated comments, that the Commission regards as not
injuring an employee, and comments sufficient to aggrieve a complainant.
Though one factor the Commission will look at in such cases is background
evidence that relates to the overall environment.
The Commission has held that, under certain circumstances, a limited
number of highly offensive slurs or comments about a federal employee's
race or national origin may in fact support a finding of discrimination
under Title VII. Brooks v. Department of the Navy, EEOC Request
No. 05950484 (June 25, 1996). See also Yabuki v. Department of the
Army, EEOC Request No. 05920778 (June 4, 1993) (where a supervisor
stood at the water cooler, pointed his finger at complainant's face,
and declared disparagingly in front of other employees, �it is because
of [complainant]� that the Japanese people will soon own the country);
Gamboa v. United States Postal Service, EEOC Request No. 05890633
(August 31, 1989) (the Commission held that a single incident involving
two humiliating remarks by appellant's supervisor, taking place in a
public forum, stated a claim for disability discrimination).
In the present case, complainant contends that she was subjected to
harassment when the Lieutenant Commander made derogatory remarks about
her age and when he requested that she transfer to another position.
With regard to the comment where the Lieutenant Commander supposedly
told complainant that if she was 30 or 35 he would not even consider the
job transfer, but since she is 54 and her career is basically over, it
does not matter where she works as long as she gets a paycheck, we find
that this comment by itself is sufficiently severe to state a claim.
Viewing this incident and the other identified incidents in the light
most favorable to complainant, we find that complainant has stated a
cognizable claim under the EEOC Regulations. See Cervantes v. United
States Postal Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was improper. The complaint is hereby REMANDED for
further processing in accordance with the ORDER below.
ORDER (E)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37656-57 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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).
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:
December 1, 1999
_________________ _____________________________
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 of mailing. I certify that
the decision was mailed to complainant and the agency on:
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.
2 The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal, final action or decision. Accordingly,
since the agency failed to submit evidence of the date of receipt, the
Commission presumes that complainant's appeal was filed within thirty
(30) days of receipt of the agency's dismissal, final action or decision.
See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.402).